UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10019
GARLAND EDWARDS,
Petitioner-Appellant,
versus
GEORGE E. KILLINGER, Warden,
Federal Correctional Institution, Fort Worth,
Respondent-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
(4:97-CV-849-A)
August 14, 1998
Before POLITZ, Chief Judge, HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Garland Edwards, convicted on a guilty plea of conspiracy to possess with
intent to distribute cocaine, appeals the denial of his petition for habeas corpus
relief under 28 U.S.C. § 2241. For the reasons assigned, we affirm.
There was no direct appeal of Edwards’ conviction or sentence, but he moved
for relief under 28 U.S.C. § 2255, alleging ineffective assistance of counsel. This
motion was denied; we affirmed on appeal.1 Edwards then sought permission to
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1
United States v. Edwards, No. 96-60667 (5th Cir. May 5, 1997) (unpublished).
file a successive section 2255 petition in which he would seek to challenge the
enhancement of his sentence for possession of a firearm in light of the decision in
Bailey v. United States.2 We denied that motion.3 The instant petition followed.
A hearing was conducted by a magistrate judge who issued a report with the
recommendation that Edwards’ habeas petition be denied. Edwards filed
objections. The district court adopted the report of the magistrate judge. Edwards
moved for reconsideration; the motion was denied. He then filed a notice of appeal
of the district court’s judgment and moved for leave to proceed in forma pauperis.
The magistrate judge granted IFP. The district judge construed the notice of appeal
as a motion for a certificate of appealability and issued an order denying a COA.
Inasmuch as this is an appeal of a judgment denying a section 2241 petition, no
COA is required.4
Edwards contends that the district court erred in denying his claim that the
Bureau of Prisons violated his due process and equal protection rights by denying
him a one-year sentence reduction under 18 U.S.C. § 3621(e)(2)(B) because of the
enhancement of his sentence under section 2D1.1(b)(1) of the Sentencing
Guidelines for possession of a firearm during the underlying offense. We are not
persuaded.
The contentions advanced by Edwards are foreclosed by dispositive decisions
2
516 U.S. 137 (1995).
3
In Re: Edwards, No. 97-00546 (5th Cir. Dec. 10, 1997) (unpublished).
4
Ojo v. I.N.S., 106 F.3d 680 (5th Cir. 1997).
2
of this court. He does not have a constitutionally protected liberty interest in a
discretionary early release under section 3621(e)(2)(B).5 Nor may he demonstrate
an equal protection violation by merely pointing to a disagreement among the
circuits as to the interpretation to be given this statute. We have held that
“disagreement between the circuits on the interpretation of a federal statute is a
matter which either the Supreme Court or Congress should resolve; it does not
violate the equal protection rights of the person subjected to the ‘more burdensome
interpretation.’”6
The judgment appealed is AFFIRMED.
5
Venegas v. Henman, 126 F.3d 760 (5th Cir. 1997).
6
Hawkins v. Agricultural Mktg. Serv., Dept. of Agric., 10 F.3d 1125, 1131-32 (5th Cir.
1993).
3