Bazuaye v. Tombone ( 2001 )

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.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:00-CV-833
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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that this opinion should not be published and is not precedent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
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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
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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.