Gilbert v. Woods ( 1998 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 97-40849
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MICHAEL ANDERSON GILBERT,
Petitioner-Appellant,
versus
W.F. WOODS, Warden; U.S. PAROLE COMMISSION,
Respondents-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(C-96-CV-204)
January 20, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Michael Anderson Gilbert, federal prisoner #52595-080, appeals
the district court’s denial of his petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. He argues that the Parole
Commission’s calculation of his credit for a superior program
achievement (“SPA”) award violated his due process rights. Because
the Parole Commission followed its own regulations and procedures
in issuing its decision, the Parole Commission’s decision did not
*
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that this opinion should not be published and is not precedent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.
violate Gilbert’s due process rights. See Kindred v. Spears, 894
F.2d 1477, 1482 (5th Cir. 1990).
Gilbert contends that the Parole Commission’s application of
28 C.F.R. § 2.60(f) in its decision violated the Ex Post Facto
Clause because the regulation was enacted after the commission of
his offense. The SPA award program was not in existence at the
time that Gilbert committed the instant offense. Because the
Commission has followed the rule set forth in § 2.60(f) from the
time that the SPA award program was enacted, as an interpretive
instruction and later as codified in § 2.60(f), the Commission’s
application of § 2.60(f) to Gilbert did not violate his rights
under the Ex Post Facto Clause. See Graham v. United States Parole
Comm’n, 629 F.2d 1040, 1043 (5th Cir. 1980) (statute or regulation
violates the Ex Post Facto Clause if it delays parole eligibility).
Gilbert argues that the Parole Commission’s decision violated
his rights under the Equal Protection Clause because the Commission
treated him differently than a similarly situated inmate. Because
Gilbert has not alleged or established that the Commission had an
improper motive for its decision, Gilbert has not shown that the
Commission violated his equal protection rights. See Thompson v.
Patteson, 985 F.2d 202, 207 (5th Cir. 1993).
Gilbert argues that the district court erred in granting the
respondents’ motion for summary judgment. Because Gilbert
acknowledges that there are no disputed facts which would preclude
the grant of summary judgment, he has not shown that the district
court erred in granting the respondents’ motion for summary
judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
Gilbert’s motion for a default judgment is DENIED.
AFFIRMED; MOTION FOR DEFAULT JUDGMENT DENIED.