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Miller v. Gallegos, 10th Cir. (2005)
Miller v. Gallegos, 10th Cir. (2005)
FEB 3 2005
PATRICK FISHER
Clerk
RICHARD L. MILLER,
Petitioner-Appellant,
v.
E. J. GALLEGOS,
No. 04-1117
(D.C. No. 03-F-1769 (BNB))
(D. Colo.)
Respondent-Appellee.
___________________________
IVON ERNEST YATES,
Petitioner-Appellant,
v.
E. J. GALLEGOS, Warden,
No. 04-1118
(D.C. No. 03-F-1760 (MJW))
(D. Colo.)
Respondent-Appellee.
___________________________
RAYMOND P. BATES,
Petitioner-Appellant,
v.
E. J. GALLEGOS,
Respondent-Appellee.
___________________________
No. 04-1119
(D.C. No. 03-F-2109 (PAC))
(D. Colo.)
ROBBI STANSBERRY,
Petitioner-Appellant,
No. 04-1120
(D.C. No. 03-F-2041 (BNB))
(D. Colo.)
v.
E. J. GALLEGOS,
Respondent-Appellee.
___________________________
ERICK THOMAS REDDOG,
Petitioner-Appellant,
No. 04-1141
(D.C. No. 03-F-2230)
(D. Colo.)
v.
E. J. GALLEGOS, Warden,
Respondent-Appellee.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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After examining the briefs and appellate records, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals.
See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
habeas petitions under 28 U.S.C. 2241, to challenge the validity of the BOP
regulation under which they were denied eligibility. The district court held that
though an interim version may have been invalid under the Administrative
Procedures Act (APA) for noncompliance with notice and comment procedures,
see 5 U.S.C. 553, the regulation had been properly finalized before its
application to petitioners (none of whom had entered the program when the final
regulation became effective). The court therefore denied relief. Petitioners now
appeal, and specifically request that the case be remanded for further evidentiary
proceedings. We deny this request and affirm.
The statute provides in relevant part that [t]he period a prisoner convicted
of a nonviolent offense remains in custody after successfully completing a
[substance abuse] treatment program may be reduced by the Bureau of Prisons,
but such reduction may not be more than one year from the term the prisoner must
otherwise serve. 18 U.S.C. 3621(e)(2)(B).
2
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1174-77 (D. Ore. 2003), which the district court relied on in assuming that the
interim regulation was invalid.
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least cured any procedural deficiencies associated with its origination, and
[u]nder either mode of analysis, the application of the BOP regulation to the
petitioners after December 2000 is valid.
Id. at 20.
in fact
obtained documentary evidence from the BOPs own files, and seek a limited
remand to the district court to afford it the opportunity to reconsider its Order
based on the true facts. Combined Motion for Limited Remand with
Declarations (Aplt. Br.)
at 4.
see PS 5330.10
By order filed July 13, 2004, this court granted petitioners request to deem
their combined motion for remand as their opening brief. They have submitted no
additional briefing on the issues raised by these appeals.
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(attachments J & N), which was last modified by a Change Notice issued in
conjunction with the interim version of 550.58(a)(1) in 1997.
See PS 5330.10,
CN-03 (October 9, 1997). The BOP forms continue to reference this most recent
revision of the program statement, but that does not mean petitioners applications
were assessed under the procedurally questioned 1997 interim regulation. On the
contrary, the information on the completed forms confirms what the governments
affidavits state, that petitioners applied and were put on a waiting list for the drug
program at various times in 2002-2003, were notified of their ineligibility for the
sentence reduction, and then actually enrolled in 2003 all well after the interim
regulation became final. In light of these established facts, which are fully
consistent with the district courts unchallenged legal analysis, there is no basis for
the requested remand.
Petitioners attempt to buttress their request for remand by asserting that it
would also allow the district court to consider an issue which
considered when dealing with [their] claims as they are
newly raised allegation that they all pled guilty on the understanding that they
would be eligible for a 3621(e) sentence reduction and that this expectation has
been frustrated by application of the regulation and program statement discussed
above. Aplt. Br. at 5. Actually, there are very good reasons why this issue should
not have been considered in conjunction with the APA objection addressed by the
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district court. No plea challenge was asserted in petitioners pleadings, nor did the
district judge have any direct knowledge of their underlying criminal proceedings
even to suggest such an issue. Indeed, petitioners were all convicted outside the
federal district of Colorado and, therefore, any challenge to their pleas would not
have fallen within the jurisdiction of the district court.
F.3d 164, 166 (10 th Cir. 1996) (explaining that in contrast to 2241 petition,
which concerns execution of sentence and thus must be filed in the district where
the prisoner is confined, 2255 motion concerns validity of conviction and
sentence and thus must be filed in the district that imposed the sentence).
Petitioners have submitted a Fed. R. App. P. 28(j) letter citing
Blakely v.
Washington , 124 S. Ct. 2531 (2004), which, without further explanation, they state
is far-reach[ing] and should affect the outcome of this action. F.R.A.P. 28(j)
Supplementary Authority filed July 20, 2004. They have not, however, filed a
Motion for Post-Submission Consideration, nor did [they] seek permission to file a
brief properly raising the
United States
Blakely
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Finally, we note that four of the five petitioners have sought leave to appeal
in forma pauperis. In light of our discussion above, we conclude that they have
failed to demonstrate the existence of a reasoned, non-frivolous argument in law or
fact in support of their appeals and, accordingly, we deny them leave to proceed in
forma pauperis and dismiss their appeals pursuant to 28 U.S.C. 1915(e)(2)(B)(i).
See Caravalho v. Pugh , 177 F.3d 1177, 1179 (10 th Cir. 1999). Petitioner Bates,
however, paid the appellate filing fee in full at the outset, rendering 1915(e)(2)
inapplicable, and therefore in his case it [is] appropriate to affirm the district
courts judgment rather than dismiss the appeal.
David M. Ebel
Circuit Judge
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