Gagliano v. Conner ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-41599
Conference Calendar
JOSEPH GAGLIANO,
Petitioner-Appellant,
versus
N.L. CONNER, Warden; DAVID GRANT, Dr.;
FEDERAL BUREAU OF PRISONS,
Respondents-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:98-CV-209
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August 26, 1999
Before KING, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Joseph Gagliano appeals the district court’s denial of his
28 U.S.C. § 2241 petition. Gagliano argues that he has a
procedural due process right and protected liberty interest to
participate in a drug abuse treatment program under 18 U.S.C.
§ 3621. Successful completion in the program could entitle
Gagliano to a one-year sentence reduction. See § 3621(e)(2)(B).
Gagliano also argues that the district court erred by failing to
conduct an evidentiary hearing.
*
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that this opinion should not be published and is not precedent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. 98-41599
-2-
Gagliano does not have a protected liberty interest under
§ 3621. See Rublee v. Fleming, 160 F.3d 213, 217 (5th Cir.
1998). Accordingly, Gagliano’s appeal is DISMISSED as frivolous.
Because Gagliano’s petition was resolved on a purely legal
question, the district court did not commit error when it did not
conduct an evidentiary hearing. See United States v. Tubwell, 37
F.3d 175, 179 (5th Cir. 1994).
DISMISSED as frivolous.