United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 1, 2005
Charles R. Fulbruge III
Clerk
No. 04-10868
Summary Calendar
HAYWOOD GEORGE ALEXANDER,
Petitioner-Appellant,
versus
K. J. WENDT, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CV-873-M
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Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Haywood George Alexander, federal prisoner # 26639-077,
moves for leave to proceed in forma pauperis (IFP) following the
district court’s certification pursuant to 28 U.S.C. § 1915(a)(3)
that his appeal from the denial of his 28 U.S.C. § 2241 habeas
corpus petition is taken in bad faith. Alexander also asks this
court to expedite his appeal. The court GRANTS Alexander’s
motion to proceed IFP. Because no further briefing is needed to
resolve Alexander’s appeal, the court will consider the merits of
Alexander’s argument.
*
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this opinion should not be published and is not precedent except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. 04-10868
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Alexander contends that application of Bureau of Prisons’
(BOP) 1995 and 1996 program statements and regulations--which
were promulgated after he committed his offense conduct--to deny
him eligibility for early release under 18 U.S.C.
§ 3621(e)(2)(B) violated the Ex Post Facto Clause. He also
suggests that the adjustment to his guideline offense level for
possession of a firearm violated United States v. Booker, 125
S. Ct. 738 (2005), and Blakely v. Washington, 124 S. Ct. 2531
(2004).
The application of the program statements and regulations to
Alexander merely deprived him of an opportunity to take advantage
of a discretionary early-release provision. They did not
increase the penalty for his offense. As a result, no Ex Post
Facto Clause violation occurred. See Wottlin v. Fleming, 136
F.3d 1032, 1037-38 (5th Cir. 1998); see also Warren v. Miles, 230
F.3d 688, 692-93 (5th Cir. 2000).
Regarding his guideline adjustment, Alexander does not seek
relief under 28 U.S.C. § 2255, nor does he make any argument
regarding the savings clause of 28 U.S.C. § 2255. He therefore
has made no argument supporting relief under Booker or Blakely in
the context of this case. Consequently, the court AFFIRMS the
judgment denying Alexander’s petition for habeas relief. Having
resolved this matter, the court DENIES Alexander’s motion to
expedite his appeal as moot.
AFFIRMED.
No. 04-10868
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