                                                          F I L E D
                                                    United States Court of Appeals
                                                            Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                            FEB 3 2005
                       FOR THE TENTH CIRCUIT
                                                       PATRICK FISHER
                                                                Clerk


RICHARD L. MILLER,

          Petitioner-Appellant,

v.                                           No. 04-1117
                                      (D.C. No. 03-F-1769 (BNB))
E. J. GALLEGOS,                                (D. Colo.)

          Respondent-Appellee.

___________________________

IVON ERNEST YATES,

          Petitioner-Appellant,
                                             No. 04-1118
v.                                    (D.C. No. 03-F-1760 (MJW))
                                               (D. Colo.)
E. J. GALLEGOS, Warden,

          Respondent-Appellee.

___________________________

RAYMOND P. BATES,

          Petitioner-Appellant,
                                             No. 04-1119
v.                                    (D.C. No. 03-F-2109 (PAC))
                                              (D. Colo.)
E. J. GALLEGOS,

          Respondent-Appellee.
___________________________
ROBBI STANSBERRY,

            Petitioner-Appellant,
                                                        No. 04-1120
v.                                               (D.C. No. 03-F-2041 (BNB))
                                                          (D. Colo.)
E. J. GALLEGOS,

            Respondent-Appellee.

___________________________

ERICK THOMAS REDDOG,

            Petitioner-Appellant,
                                                         No. 04-1141
v.                                                   (D.C. No. 03-F-2230)
                                                          (D. Colo.)
E. J. GALLEGOS, Warden,

            Respondent-Appellee.



                          ORDER AND JUDGMENT            *




Before EBEL , BALDOCK , and KELLY , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the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.

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

unanimously that oral argument would not materially assist the determination of

these appeals.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

       Petitioners are federal prisoners found ineligible for a reduction in sentence

available, at the discretion of the Bureau of Prisons (BOP), to nonviolent

offenders who successfully complete a residential substance abuse treatment

program under 18 U.S.C. § 3621(e).   2
                                         They filed these actions, properly deemed

habeas petitions under 28 U.S.C. § 2241, to challenge the validity of the BOP

regulation under which they were denied eligibility. The district court held that

though an interim version may have been invalid under the Administrative

Procedures Act (APA) for noncompliance with notice and comment procedures,

see 5 U.S.C. § 553, the regulation had been properly finalized before its

application to petitioners (none of whom had entered the program when the final

regulation became effective). The court therefore denied relief. Petitioners now

appeal, and specifically request that the case be remanded for further evidentiary

proceedings. We deny this request and affirm.


2
      The statute provides in relevant part that “[t]he period a prisoner convicted
of a nonviolent offense remains in custody after successfully completing a
[substance abuse] treatment program may be reduced by the Bureau of Prisons,
but such reduction may not be more than one year from the term the prisoner must
otherwise serve.” 18 U.S.C. § 3621(e)(2)(B).

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       The regulation in question is codified at 28 C.F.R. § 550.58(a)(1). The

APA issues raised by the manner in which the interim version of this regulation

was proposed in 1997 are addressed in    Bohner v. Daniels , 243 F. Supp. 2d 1171,

1174-77 (D. Ore. 2003), which the district court relied on in assuming that the

interim regulation was invalid.   See also Lopez v. Davis , 531 U.S. 230, 244 n.6

(2001) (declining to address procedural challenge to interim regulation based on

violation of APA notice and comment requirements while upholding regulation

against substantive challenge to eligibility exclusions). We agree with the district

court that the APA issues relating to the interim regulation are not dispositive

here and, therefore, we express no opinion on the regulation’s procedural validity

in 1997. As the government notes, the interim regulation was finalized on

December 22, 2000, see 65 Fed. Reg. 80745, and it is this version that in our view

governs the disposition of these appeals.

       In light of the history of § 550.58(a)(1), the district court appropriately

considered “whether an interim regulation, found invalid for non-compliance with

the advance publication and notice requirements of the APA, can become valid as

a final regulation after the passage of time and the completion of the comment

period required by the APA.” Dist. Ct. Order filed March 11, 2004, at 17-18.

The court ultimately concluded that the final version of the regulation (which is

the same as the interim version) either “superseded the interim regulation” or at


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least cured any procedural deficiencies associated with its origination, and

“[u]nder either mode of analysis, the application of the BOP regulation to the

petitioners after December 2000 is valid.”         Id. at 20.

       On appeal, petitioners do not challenge the district court’s legal analysis,

but focus on what they insist was its erroneous factual assumption that the BOP

relied on the finalized version of § 550.58(a)(1) when it found them ineligible for

the statutory sentence reduction. They “maintain that they were     in fact

‘designated’ by the BOP under the      1997 interim regulation” as shown by “recently

obtained documentary evidence from the BOP’s own files,” and seek a “limited

remand to the district court to afford it the opportunity to reconsider its Order

based on the true facts.” Combined Motion for Limited Remand with

Declarations (Aplt. Br.)   3
                               at 4.

      Attached to the financial declarations filed with petitioners’ motion for

remand are “Notice of Residential Drug Abuse Program Qualification and

Provisional § 3621(e) Eligibility” and “Notification of Instant Offense

Determination” forms completed in association with their requests to participate in

the residential drug treatment program. These forms are attachments to the BOP

program statement dealing with prison drug abuse programs,        see PS 5330.10


3
       By order filed July 13, 2004, this court granted petitioners’ request to deem
their combined motion for remand as their opening brief. They have submitted no
additional briefing on the issues raised by these appeals.

                                             -5-
(attachments J & N), which was last modified by a Change Notice issued in

conjunction with the interim version of § 550.58(a)(1) in 1997.      See PS 5330.10,

CN-03 (October 9, 1997). The BOP forms continue to reference this most recent

revision of the program statement, but that does not mean petitioners’ applications

were assessed under the procedurally questioned 1997 interim regulation. On the

contrary, the information on the completed forms confirms what the government’s

affidavits state, that petitioners applied and were put on a waiting list for the drug

program at various times in 2002-2003, were notified of their ineligibility for the

sentence reduction, and then actually enrolled in 2003 – all well after the interim

regulation became final. In light of these established facts, which are fully

consistent with the district court’s unchallenged legal analysis, there is no basis for

the requested remand.

       Petitioners attempt to buttress their request for remand by asserting that it

“would also allow the district court to consider an issue which     should have been

considered when dealing with [their] claims as they are      pro se,” namely, their

newly raised allegation that they all pled guilty on the understanding that they

would be eligible for a § 3621(e) sentence reduction and that this expectation has

been frustrated by application of the regulation and program statement discussed

above. Aplt. Br. at 5. Actually, there are very good reasons why this issue should

not have been considered in conjunction with the APA objection addressed by the


                                            -6-
district court. No plea challenge was asserted in petitioners’ pleadings, nor did the

district judge have any direct knowledge of their underlying criminal proceedings

even to suggest such an issue. Indeed, petitioners were all convicted outside the

federal district of Colorado and, therefore, any challenge to their pleas would not

have fallen within the jurisdiction of the district court.    See Bradshaw v. Story , 86

F.3d 164, 166 (10 th Cir. 1996) (explaining that in contrast to § 2241 petition,

which concerns execution of sentence and thus “must be filed in the district where

the prisoner is confined,” § 2255 motion concerns validity of conviction and

sentence and thus “must be filed in the district that imposed the sentence”).

       Petitioners have submitted a Fed. R. App. P. 28(j) letter citing         Blakely v.

Washington , 124 S. Ct. 2531 (2004), which, without further explanation, they state

“is far-reach[ing] and should affect the outcome of this action.” F.R.A.P. 28(j)

Supplementary Authority filed July 20, 2004. They have not, however, filed “a

Motion for Post-Submission Consideration, nor did [they] seek permission to file a

brief properly raising the    Blakely issue,” so we need not consider it.       United States

v. Lindsey , 389 F.3d 1334, 1335 n.1 (10      th Cir. 2004). In any event, as    Blakely

concerns procedural requirements regarding a trial court’s imposition of sentence,

while the instant actions concern BOP directives regarding execution of sentence,

the supplemental authority has no relevance here.




                                               -7-
      Finally, we note that four of the five petitioners have sought leave to appeal

in forma pauperis. In light of our discussion above, we conclude that they have

failed to demonstrate the existence of a reasoned, non-frivolous argument in law or

fact in support of their appeals and, accordingly, we deny them leave to proceed in

forma pauperis and dismiss their appeals pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

See Caravalho v. Pugh , 177 F.3d 1177, 1179 (10 th Cir. 1999). Petitioner Bates,

however, paid the appellate filing fee in full at the outset, rendering § 1915(e)(2)

inapplicable, and therefore in his case “it [is] “appropriate to affirm the district

court’s judgment rather than dismiss the appeal.”    Stafford v. United States , 208

F.3d 1177, 1179 n.4 (10 th Cir. 2000).

      The judgment of the district court is AFFIRMED and appellants’ motion for

remand is DENIED. The motions for leave to appeal in forma pauperis filed by

appellants Miller, Yates, Stansberry, and Reddog are DENIED and their appeals,

Nos. 04-1117, 04-1118, 04-1120, and 04-1141, are DISMISSED.



                                                     Entered for the Court



                                                     David M. Ebel
                                                     Circuit Judge




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