                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JAN 4 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    MARK ARNOLD GOODWIN,

                Petitioner-Appellant,

    v.                                                   No. 03-6320
                                                     (D.C. No. 02-CV-517)
    JOHN E. SUGRUE, Warden;                              (W.D. Okla.)
    KATHLEEN HAWK, Director of
    Bureau of Prisons,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Petitioner Mark Arnold Goodwin, a federal inmate proceeding pro se,

appeals the order denying his petition filed under 28 U.S.C. § 2241, seeking a

sentence reduction based on his completion of a Residential Drug Abuse Program

(the Program), under 18 U.S.C. § 3621(e)(2)(B). A federal magistrate judge

recommended that the petition be denied, and the district court adopted the

recommendation after a de novo review. The court also denied Mr. Goodwin’s

post-trial motion to reconsider. We exercise jurisdiction under 28 U.S.C. § 1291

and affirm.

      In December of 1996, Mr. Goodwin was sentenced to 120 months’

imprisonment plus five years’ supervised released on his convictions for

possession with intent to distribute methamphetamine and possession of a stolen

firearm. In early 1997, he sought the benefit of § 3621(e)(2)(B), which allows a

sentence reduction of up to one year upon completion of the Program, but only for

those convicted of nonviolent offenses. The Bureau of Prisons (BOP) informed

Mr. Goodwin that he was not eligible for early release under § 3621(e)(2)(B)

because his firearm conviction placed him outside the class of nonviolent

offenders, but he was granted permission to participate in the Program anyway.

Mr. Goodwin entered the Program in August of 1997. In August of 1998, the

BOP notified him that he was conditionally eligible for early release. In January

of 2001, however, the BOP notified him that he was not eligible for early release,


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pursuant to Lopez v. Davis , 531 U.S. 230, 244 (2001) (holding BOP had

discretion and authority to deny early release to category of prisoners whose

current offense was a felony involving carrying, possession, or use of firearm).

Mr. Goodwin maintains that the BOP’s withdrawal of his eligibility for early

release violated his rights.

       On appeal, Mr. Goodwin asserts that (1) the BOP applied retroactively a

judicial decision to deny him early release in violation of the Ex Post Facto

Clause, (2) the denial of early release violated his due process rights, (3) the BOP

did not apply the correct rules to him, which improperly caused him to be denied

early release, and (4) the BOP’s attempt to change the regulation governing

eligibility for early release under § 3621(c)(2)(B) was invalid because the

procedure did not comport with the Administrative Procedure Act.

       Because he is a federal prisoner, Mr. Goodwin is not required to obtain a

certificate of appealability for review of the order denying his § 2241 petition.

Bledsoe v. United States , 384 F.3d 1232, 1235 (10th Cir. 2004). We review de

novo the district court’s decision to deny a writ under § 2241.   Id.

       As a preliminary matter, we recognize that Mr. Goodwin did not exhaust

administrative remedies. This failure to exhaust does not implicate this court’s

subject matter jurisdiction.   Garrett v. Fleming , 362 F.3d 692, 694 n.2 (10th Cir.

2004). Therefore, we have considered the merits of Mr. Goodwin’s appeal.


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      We have carefully reviewed the record on appeal and the parties’ briefs.

Applying the standard set out above, we affirm the district court’s order denying a

writ under § 2241 for the same reasons stated in the magistrate judge’s

comprehensive and exhaustive recommendation, the district court’s order

adopting the recommendation, and the district court’s order denying

reconsideration.

      The district court granted Mr. Goodwin’s motion to proceed without

prepayment of costs and fees on appeal. He is reminded that he is obligated to

continue making partial payments until the entire fee has been paid.

      The judgment of the district court is AFFIRMED. The mandate shall issue

forthwith.



                                                   Entered for the Court



                                                   Michael R. Murphy
                                                   Circuit Judge




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