           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 29, 2009
                                     No. 09-10024
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

ANNABEL O. TORRES,

                                                   Petitioner–Appellant,

v.

W. ELAINE CHAPMAN, Warden, Federal Medical Center Carswell; FEDERAL
BUREAU OF PRISONS,

                                                   Respondents–Appellees.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 4:08-CV-00587-A


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       The petitioner Annabel O. Torres appeals, pro se, the dismissal of her
petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2241. Torres
was convicted for the offense of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1), and is serving a seventy-month prison sentence
to be followed by three years of supervised release. She applied for the Bureau
of Prisons (BOP) Residential Drug Abuse Program (RDAP). Upon completion of


       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 09-10024

the program, an inmate convicted of a nonviolent felony may obtain a sentence
reduction not exceeding one year, subject to the BOP’s discretionary authority
under 18 U.S.C. § 3621(e)(2)(B). BOP maintains a policy, codified at 28 C.F.R.
§ 550.55(b)(5)(ii), which categorically excludes from early-release any inmates
with a felony conviction for “[a]n offense that involved the carrying, possession,
or use of a firearm.” 1 Torres instituted proceedings under 28 U.S.C. § 2241,
alleging that this exclusion would wrongfully deny her the opportunity to
participate in RDAP, and consequently, the opportunity for a sentence reduction
under 18 U.S.C. § 3621(e)(2)(B). The district court dismissed the petition in its
entirety for lack of ripeness and standing because Torres had not yet been
denied admission to the program, and alternatively, because she failed to
exhaust her administrative remedies.
       Torres challenges the district court’s dismissal of her petition. She argues
that BOP’s categorical exclusion policy, which denies her the possibility of a
sentence reduction under § 3621(e)(2)(B), is unenforceable because it violates the
Administrative Procedures Act. She also contends that she is entitled to the
same relief granted to prisoners who were parties to Arrington v. Daniels, a
Ninth Circuit case finding the categorical exclusion to be arbitrary and
capricious. 516 F.3d 1106 (9th Cir. 2008). According to Torres, a denial of
similar relief would constitute “disparate treatment of similarly situated inmates
at similar Bureau of Prisons’ [sic] institutions, particularly located within the
Ninth Circuit,” in violation of the Equal Protection Clause and the Due Process
Clause of the Fifth Amendment. Although we agree with Torres that the case
is ripe and she has standing to bring her petition under 28 U.S.C. § 2241,
Handley v. Chapman mandates that we vacate the district court’s judgment and
rule for the defendants on the merits. 587 F.3d 273 (5th Cir. 2009).


       1
        The prior version of this regulation was codified at 28 C.F.R. §550.58(a)(1)(vi)(B), and
categorically excluded from early-release eligibility those inmates whose “current offense is
a felony” that “involved the carrying, possession, or use of a firearm.”

                                               2
                                   No. 09-10024

      We first address Torres’s standing and ripeness arguments. We review
“the district court’s legal determinations and application of AEDPA de novo” and
review factual findings “for clear error.” Buntion v. Quarterman, 524 F.3d 664,
670 (5th Cir. 2008). The district court concluded that the case was not ripe for
review because BOP had made no determination on whether Torres was eligible
to participate in the RDAP. The case is nevertheless ripe because Torres “brings
a facial challenge to BOP’s policy of categorically denying early release eligibility
to inmates convicted as felons in possession of a firearm.” Handley, 587 F.3d at
280. Torres’s failure to exhaust administrative remedies likewise presents no
bar to our resolution of this petition. Torres’s ability to participate in the RDAP
is relevant to our determination only so far as it implicates her ability to obtain
a sentence reduction pursuant to 18 U.S.C. §3621(e), as the “sole function” of
habeas is to “grant relief from unlawful imprisonment or custody and it cannot
be used properly for any other purpose.” Pierre v. United States, 525 F.2d 933,
936 (5th Cir. Fla. 1976); see Fay v. Noia, 372 U.S. 391, 430-31 (1963). BOP’s
policy, which Torres challenges on its face, would ultimately preclude her from
obtaining a sentence reduction regardless of whether she is admitted to the
program. As no other standing issues remain, we proceed to address the facial
challenge on the merits.
      Torres contends that BOP’s categorical exclusion policy is unenforceable
because it is “arbitrary and capricious” under §706(2)(A) of the Administrative
Procedure Act. Torres specifically challenges 28 C.F.R. § 550.58(a)(1)(vi)(B), the
version of the categorical exclusion in operation at the time of the district court
decision. This challenge is without merit. In Handley, we held that this version
of the regulation was neither arbitrary nor capricious because BOP articulated
“public safety” as a rationale for the BOP’s policy, and we expressly rejected the
Ninth Circuit’s contrary conclusion in Arrington. Handley, 587 F.3d at 276.
Torres’s argument also fails on an alternative ground. The new version of the
categorical exclusion, codified at 28 C.F.R. § 550.55, applies to Torres “because

                                         3
                                  No. 09-10024

its application would not have an impermissible retroactive effect.” Id. at 277.
This version provides “a much more detailed rationale for the categorical
exclusion” than the prior codification, and is likewise valid under the APA. Id.
at 279.
      Torres’s equal protection and due process arguments are both without
merit. Torres contends that she has been denied equal protection under the law
because “she was not given the same relief as petitioners in Arrington.” In
absence of the showing of a fundamental right or membership in a suspect class,
we employ only “rational-basis” review to Torres’s claim.        Id. at 280.   Our
precedent establishes that the relief obtained by the petitioners in Arrington —
the opportunity to obtain a reduced sentence — is not a “fundamental right.”
Rublee v. Fleming, 160 F.3d 213, 217 (5th Cir. 1998). Our court has also
recognized that Arrington does not create a “basis for equal protection relief for
prisoners outside the Ninth Circuit” because such prisoners do not constitute a
“suspect class.” Handley, 587 F.3d at 280 & n.5. Rational-basis review is
therefore the appropriate standard, and Torres may prevail only by negating
“any reasonably conceivable state of facts that could provide a rational basis for
the classification” made by the BOP’s categorical exclusion policy.         Bd. of
Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001) (citation and
internal quotation marks omitted). She has not carried this burden, and is not
entitled to relief.
      Torres’s due process claim also fails.     In the prison context, the Due
Process Clause operates only where a prison action has “implicated or infringed”
upon a prisoner’s “liberty interest.”    Meachum v. Fano, 427 U.S. 215, 223
(1976). With regard to Torres’s argument that she has a “‘liberty’ interest in a
sentence reduction,” our court has explicitly held that “‘[t]he Due Process Clause
does not itself confer a liberty interest in a sentence reduction for completion of
an RDAP.’” Handley, 587 F.3d at 281 (quoting Richardson v. Joslin, 501 F.3d
415, 419 (5th Cir. 2007); Rublee, 160 F.3d at 217 (finding that an inmate has “no

                                        4
                                 No. 09-10024

protected liberty interest in receiving a §3621(e)(2)(B) sentence reduction.”).
Therefore, we reject Torres’s claim.
      The district court’s dismissal of the petition for lack of standing is hereby
VACATED, and judgment is RENDERED for the respondents.




                                        5
