                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  January 25, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    KIRBY KYLES,

                Petitioner-Appellant,

    v.                                                    No. 11-3226
                                                (D.C. No. 5:11-CV-03006-RDR)
    C. CHESTER, Warden,                                    (D. Kan.)

                Respondent-Appellee.


                             ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and BALDOCK, Circuit Judges.



         Kirby Kyles, a federal prisoner proceeding pro se, appeals the dismissal of

his petition for habeas corpus filed under 28 U.S.C. § 2241. We have jurisdiction

under 28 U.S.C. § 1291 and affirm.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I.    BACKGROUND

      In December 2009, Mr. Kyles pleaded guilty in federal district court to one

count of bankruptcy fraud, which he committed on July 11, 2007. He was

sentenced on June 9, 2010, and committed to the custody of the United States

Bureau of Prisons (BOP) to be imprisoned for a term of forty-six months. He

applied for participation in the BOP’s Residential Drug Abuse Program (RDAP)

in August 2010. Under 18 U.S.C. § 3621(e)(2)(B), the BOP may reduce the

sentence of a prisoner convicted of a nonviolent felony by up to one year for

successful completion of an RDAP. Mr. Kyles alleged that a BOP official

informed him that under a 2009 change in BOP regulations that bars prisoners

from earning a second § 3621(e) reduction, he was not eligible for a reduction in

his current sentence for completing the RDAP because he had earned a § 3621(e)

reduction in a prior sentence.

      Mr. Kyles then filed a pro se petition for habeas corpus in the United States

District Court for the Western District of Oklahoma under 28 U.S.C. § 2241. He

alleged that the BOP violated the Ex Post Facto Clause of the United States

Constitution, Art. I, § 9, cl. 3, because the regulation that barred him from earning

a second sentence reduction, 28 C.F.R. § 550.55(b)(7), as well as a parallel BOP

Program Statement (PS), 5331.02, both took effect on March 16, 2009, well after

the date he committed his offense. He claimed that under the version of the

regulation in effect on the date of his offense, 28 U.S.C. § 550.58, prisoners were

                                         -2-
not precluded from obtaining more than one § 3621(e) sentence reduction. He

also alleged that § 550.55(b)(7) conflicted with the requirements of § 3621(e),

and he claimed that lack of notice of the amended regulation violated his due

process rights. He further asserted a liberty in interest in obtaining a sentence

reduction and made passing reference to unequal treatment.

      The district court screened the petition and issued a detailed Memorandum

and Order outlining its deficiencies. The court observed that § 3621(e) did not

establish criteria for early release eligibility, but instead gave the BOP discretion

to determine when, if at all, a prisoner’s sentence might be reduced for

successfully completing an RDAP. The court further noted that in Lopez v.

Davis, 531 U.S. 230 (2001), the Supreme Court stated that the BOP “may exclude

inmates either categorically or on a case-by-case basis, subject of course to its

obligation to interpret [§ 3621(e)] reasonably, in a manner that is not arbitrary

and capricious.” Id. at 240 (citation omitted). The district court concluded that

the BOP’s exclusion for prisoners seeking a second sentence reduction for

successful RDAP completion was a permissible exercise of its discretion and an

acceptable interpretation of § 3621(e).

      The district court then turned to Mr. Kyles’s claim under the Ex Post Facto

Clause, which prohibits laws that “retroactively alter the definition of crimes or

increase the punishment for criminal acts,” Collins v. Youngblood, 497 U.S. 37,

43 (1990). The court concluded that on the date of his offense (July 11, 2007),

                                          -3-
the BOP’s policy of denying a second RDAP sentence reduction had been

established in a prior program statement, PS 5331.01, which took effect on

September 29, 2003. Therefore, the court concluded, Mr. Kyles had sufficient

notice of the BOP’s policy at the time he committed his offense, and the amended

regulation, § 550.55(b)(7), did not increase his penalty beyond what the BOP

already provided in PS 5331.01. The court further reasoned that the amended

regulation took effect on March 16, 2009, well before Mr. Kyles was evaluated

for an RDAP on August 6, 2010, and therefore the BOP appropriately considered

his eligibility under the amended regulation. In addition, the court concluded that

the denial of early release is not an increase in a prisoner’s sentence for ex post

facto purposes.

      As to the other claims, the court concluded that Mr. Kyles had no liberty

interest in a sentence reduction, and that he had alleged no facts establishing the

elements of an equal protection claim. Thus finding no facial merit in the

petition, the district court ordered Mr. Kyles to show cause why it should not be

dismissed. Mr. Kyles filed a response, two addenda to it, and a supplemental

response. After reviewing those additional filings, the district court dismissed the

petition. In addition to rejecting Mr. Kyles’s arguments regarding its prior order,

the court identified and rejected a new claim, that the promulgation of

§ 550.55(b)(7) violated the Administrative Procedures Act (APA). This appeal

followed.

                                          -4-
II.      DISCUSSION

         “We review de novo the district court’s denial of habeas corpus relief.”

Martinez v. Flowers, 164 F.3d 1257, 1258 (10th Cir. 1998). Because Mr. Kyles

represents himself, we afford his pleadings a liberal construction, but we do not

act as his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir.

2008).

         Mr. Kyles presents four issues on appeal, which can be reduced to two:

(1) the district court erred in its ex post facto analysis; and (2) prohibiting a

prisoner from earning more than one sentence reduction for successfully

completing an RDAP conflicts with § 3621(e). We address the issues in order.

         A.    Ex Post Facto Claim

         Again, the Ex Post Facto Clause prohibits laws that “retroactively alter the

definition of crimes or increase the punishment for criminal acts.” Collins,

497 U.S. at 43. It “forbids the imposition of punishment more severe than the

punishment assigned by law when the act to be punished occurred.” Weaver v.

Graham, 450 U.S. 24, 30 (1981). “Critical to relief under the Ex Post Facto

Clause is not an individual’s right to less punishment, but the lack of fair notice

and governmental restraint when the legislature increases punishment beyond

what was prescribed when the crime was consummated.” Id.

         Mr. Kyles argues that the district court erred in using the date he applied

for admission in the RDAP as the relevant date for its ex post facto analysis. He

                                           -5-
contends that the date of his offense is controlling. We need not decide the issue,

although we note that the district court provided alternate analyses for each date.

To the extent the controlling date is the date Mr. Kyles applied for an RDAP, the

district court’s conclusion that the amended regulation was already in effect is

undoubtedly correct. But even assuming Mr. Kyles is correct as to the relevant

date, he has failed to show the lack of fair notice. First, at the time of his offense

in July 2007, the BOP’s policy to deny a second § 3621(e)(2)(B) sentence

reduction already was established in PS 5331.01, which became effective in

September 2003. Second, on July 1, 2004, the BOP published for comment the

proposed amended regulation, 28 C.F.R. § 550.55, which added the

second-reduction bar that had not been set out in the prior regulation, 28 C.F.R.

§ 550.58. The BOP stated that the second-reduction bar was “not a new

requirement. It is merely a clarification of [the BOP’s] existing policy and

philosophy. In fact, since the implementation of the early release statute in June

1995, we have not granted early release to an inmate more than once.” Drug

Abuse Treatment Program; Subpart Revision and Clarification, 69 Fed. Reg.

39887-02, 39889 (proposed July 1, 2004). Accordingly, even though the BOP’s

policy was not codified in the Code of Federal Regulations until 2009, we

conclude there was sufficient notice to Mr. Kyles at the time of his offense that

the BOP does not permit a prisoner to earn a second sentence reduction for

successful completion of RDAPs. Further, the amended regulation did not

                                          -6-
“assign more disadvantageous criminal or penal consequences to an act than did

the law in place when the act occurred.” Weaver, 450 U.S. at 29 n.13. Thus, the

district court properly concluded that Mr. Kyles’s ex post facto claim failed. See

id. at 30 (“lack of fair notice” is “critical” to ex post facto claim).

      We are not persuaded differently by any of Mr. Kyles’s arguments, two of

which we briefly address. First, Mr. Kyles claims the district court erred in

treating the BOP’s program statements as if they had the force of law, relying on

the principle that “[i]nterpretive rules [issued by an agency] do not have the force

and effect of law and are not accorded that weight in the adjudicatory process,”

Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 99 (1995). Although this

principle is relevant to whether the BOP’s program statements are substantive or

interpretive rules for purposes of an APA rulemaking analysis, see id., it is not

relevant to an ex post facto analysis, where the focus is on whether Mr. Kyles had

fair notice of the BOP’s policy at the time he committed his offense (he did) and

whether the amended regulation increased his penalty beyond that in place when

he committed his offense (it did not).

      Second, Mr. Kyles points to the following language in the amended

program statement, PS 5331.02: “This policy enacts the § 3621(e) early release

based on an inmate’s sentence length. This rule will be effective 03/16/2009.

Those inmates who are participating in or have completed the [RDAP] before

03/16/2009 are not affected by this rule.” PS 5331.02, ¶ 6. Mr. Kyles appears to

                                           -7-
argue that this language means the second-reduction bar only applies to prisoners

who received their first sentence reduction after the program statement’s effective

date. We disagree. The quoted language is an implementing instruction

regarding a different part of 28 C.F.R. § 550.55, subsection (c), which concerns a

prisoner’s early release time-frame, not subsection (b), which includes the

second-reduction bar. Moreover, aside from the language’s irrelevance to the

pertinent part of the regulation, Mr. Kyles reading would be contrary to the

BOP’s long-established policy of denying a second § 3621(e)(2)(B) sentence

reduction.

      B.     BOP Policy Does Not Conflict With § 3621(e)

      Mr. Kyles contends that the BOP’s second-reduction bar conflicts with

§ 3621(e). He stresses the fact that in § 3621(e), Congress did not set out the

second-reduction limitation the BOP has created but instead clearly defined which

prisoners are eligible to participate in an RDAP. He argues that the BOP cannot

categorically deny a reduced sentence, and that it did so in an arbitrary and

capricious manner that conflicts with the statute.

      These arguments have no merit. Eligibility to participate in an RDAP is

distinct from sentence-reduction eligibility; the former is defined by

§ 3621(e)(5)(B), 1 the latter is left to the BOP’s discretion under § 3621(e)(2)(B),


1
      Section 3621(e)(5)(B) defines an “eligible prisoner” as one “determined by
                                                                     (continued...)

                                         -8-
within the statutory limitation that only nonviolent offenders can earn a sentence

reduction. Under Lopez v. Davis, the BOP has discretion to determine which

categories of offenders are eligible for a sentence reduction “based on their

preconviction conduct,” 531 U.S. at 244, “subject of course to [the BOP’s]

obligation to interpret [§ 3621(e)] reasonably, in a manner that is not arbitrary

and capricious,” id. at 240 (citation omitted). When it published § 550.55 for

comment, the BOP gave sound a reason for denying a reduced sentence to

second-timers, namely, that

      it is not appropriate to provide this incentive for inmates who
      completed RDAP, gained early release, but failed to remain drug and
      crime free. To provide this incentive to the same inmate twice would
      be counter to our drug treatment philosophy that inmates must be
      held accountable for their actions when released to the community.

69 Fed. Reg. at 39889. The BOP reiterated this rationale when it finalized the

regulation in 2009. See Drug Abuse Treatment Program; Subpart Revision and

Clarification and Eligibility of D.C. Code Felony Offenders for Early Release

Consideration, 74 Fed. Reg. 1892-01, 1894 (Jan. 14, 2009). Hence, we see no

conflict between § 3621(e) and § 555.50(b)(7) or either of the relevant program

statements, and conclude that the regulation is not arbitrary and capricious.




1
 (...continued)
the [BOP] to have a substance abuse problem” and who is “willing to participate
in [an RDAP].”

                                         -9-
III.   CONCLUSION

       The judgment of the district court is AFFIRMED. Mr. Kyles’s Motion to

Proceed on Appeal Without Prepayment of Costs or Fees is denied, and he is

ordered to pay in full the $455 appellate filing fee within thirty days of this order

and judgment. The Motion to File Amicus Curiae Brief Out of Time, filed pro se

by Kenneth L. Thompson, is denied.

                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




                                        -10-
