James Jordan v. Warden, Federal Correctional Institution, Ashland, Kentucky, Respondent , 860 F.2d 1079 ( 1988 )

860 F.2d 1079

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
James JORDAN, Petitioner-Appellant,
v.
WARDEN, FEDERAL CORRECTIONAL INSTITUTION, ASHLAND, KENTUCKY,
Respondent- Appellee.

No. 88-5434.

United States Court of Appeals, Sixth Circuit.

Oct. 18, 1988.

1

Before MERRITT and RYAN, Circuit Judges and NICHOLAS J. WALINSKI, Senior District Judge.*

ORDER

2

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

James Jordan was convicted in the United States District Court for the Eastern District of Louisiana of possessing an unregistered firearm in violation of 26 U.S.C. Sec. 5861(d). He was sentenced to five years imprisonment. The United States Parole Commission rated his offense as Category Six because it found that he discharged the weapon in connection with the offense.

4

Jordan filed his petition for writ of habeas corpus in the district court under 28 U.S.C. Sec. 2241, alleging that the Parole Commission's rating was based upon erroneous information contained in the pre-sentence investigation report. The district court concluded that the Parole Commission's decision was proper and denied habeas relief.

5

Upon careful consideration, we conclude that the district court properly denied the petition. The information contained in the pre-sentence investigation report was properly considered by the Parole Commission. See Hackett v. United States Parole Comm'n, 851 F.2d 127, 130-31 (6th Cir.1987) (per curiam).

6

The Parole Commission applied the required preponderence of the evidence standard in finding that petitioner discharged a weapon. See Hackett, 851 F.2d at 130 n. 5, 131. This finding of fact is not subject to judicial review. See Farkas v. United States, 744 F.2d 37, 38-39 (6th Cir.1984). In short, a rational basis exists in the record to support the Parole Commission's conclusions. See Hackett, 851 F.2d at 129-30.

7

Accordingly, the judgment of the district court is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.

*

The Honorable Nicholas J. Walinski, Senior U.S. District Judge for the Northern District of Ohio, sitting by designation