Bazuaye v. Tombone

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 9, 2001
• Docket: 01-40318
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40318 Summary Calendar

VICTOR BAZUAYE,

Petitioner-Appellant,

versus

JOHN M. TOMBONE, Warden, Federal Correctional Institution,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:00-CV-833 -------------------- October 5, 2001

Before JOLLY, DeMOSS, and PARKER, Circuit Judges

PER CURIAM:*

Victor Bazuaye, federal prisoner no. 95612-012, appeals the

dismissal of his 28 U.S.C. § 2241 habeas petition. Bazuaye

argues that the respondent violated his constitutional due

process and equal protection rights by barring him from

community-based drug treatment and early release under 18 U.S.C.

§ 3621 based on his status as a detainee of the Immigration and

Naturalization Service (INS). Some nonviolent offenders may be

eligible for a one-year sentence reduction if they complete a

drug-abuse treatment program. 18 U.S.C. § 3621(e)(2)(B).

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-40318 -2-

However, INS detainees are not eligible for the sentence

reduction. 28 C.F.R. § 550.58(a)(1)(i). In addition, prisoners

with a “deportable alien” public safety factor are not eligible

for the community-based portion of the drug-abuse treatment

program that is a prerequisite for early release. See 28 C.F.R.

§§ 550.58(a)(1)(v) and (a)(3)(i); see also Bureau of Prisons

Program Statement 7310.04.

Bazuaye has waived consideration of the issue of the his

lack of eligibility under 28 C.F.R. § 550.58 by failing to argue

the issue on appeal. See Yohey v. Collins, 985 F.2d 222, 225

(5th Cir. 1993) (issues not briefed are abandoned); see also

American States Ins. Co. v. Bailey, 133 F.3d 363, 372 (5th Cir.

1998) (failure to provide legal or factual analysis of issue

results in waiver).

Bazuaye’s due process claim fails because 18 U.S.C. § 3621

creates no constitutionally protected liberty interest in early

release for completion of drug-abuse treatment. Rublee v.

Fleming, 160 F.3d 213, 214 (5th Cir. 1998); see also Wottlin v.

Fleming, 136 F.3d 1032, 1037 (5th Cir. 1998) (early release not a

“fundamental right”).

Bazuaye’s equal protection claim fails because he does not

show that he is being treated differently from similarly situated

persons or that the restrictions on community-based treatment or

early release are irrational. See Samaad v. City of Dallas, 940

F.2d 925 (5th Cir. 1991) (equal protection claim fails absent

comparison to similarly situated others); Rublee, 160 F.3d at

214, 217 (flight risk is rational basis for ineligibility for No. 01-40318 -3-

community-based programs); Wottlin v. Fleming, 136 F.3d at 1037

(“rational basis” review of early-release claim).

The judgment of the district court is AFFIRMED.