Alexander v. Wendt

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this opinion should not be published and is not precedent except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.
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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.
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