Jackie Browning v. R.L. Matthews, Warden of Federal Correctional Institute, and U.S. Parole Commission

820 F.2d 1224 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Jackie BROWNING, Petitioner-Appellant, v. R.L. MATTHEWS, Warden of Federal Correctional Institute, and U.S. Parole Commission, Respondents-Appellees. Nos. 87-5164, 87-5165. United States Court of Appeals, Sixth Circuit. June 15, 1987. Before WELLFORD, MILBURN and NELSON, Circuit Judges. ORDER [1] Petitioner moves to proceed in forma pauperis on appeal from the district court's orders which dismissed his petitions for a writ of habeas corpus. Upon review of the records and petitioner's brief, this panel unanimously agrees that oral argument is unnecessary. Fed.R.App.P. 34(a). [2] Petitioner's habeas petitions challenged the United States Parole Commission's use of charges contained in an indictment which was dismissed in calculating his offense severity rating. This calculation resulted in the Commission's determination that petitioner should serve 36 months or to expiration of his term, whichever came first. [3] This court's review of a decision of the United States Parole Commission is limited to a determination of whether the Commission abused its discretion in setting the parole date. Adams v. Keller, 736 F.2d 320, 324 (6th Cir.1984) (en banc). The United States Parole Commission is entitled to consider counts in an underlying indictment that were dismissed pursuant to a plea bargain. United States v. LeBlanc, 762 F.2d 502, 505 (6th Cir.), cert. denied, 106 S.Ct. 156 (1985), citing United States ex rel Goldberg v. Warden, Allenwood Federal Prison Camp, 622 F.2d 60 (3d Cir.), cert. denied, 449 U.S. 871 (1980). Accordingly, the United States Parole Commission's use of the dismissed charges was correct and the United States Parole Commission did not abuse its discretion in setting the parole date at 32-36 months. [4] Accordingly, the motion to proceed in forma pauperis is granted, and the judgments of the district court are affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.