Gabriel v. Fleming

* 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-10106
Conference Calendar
TOMMY GABRIEL,
Petitioner-Appellant,
versus
L.E. FLEMING, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CV-937-Y
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Tommy Gabriel, federal prisoner # 08531-078, appeals the
district court’s denial of his 28 U.S.C. § 2241 petition in which
he alleged that the Bureau of Prisons (BOP) had erroneously
calculated his initial custody classification. Gabriel relies on
Sellers v. Bureau of Prisons, 959 F.2d 307 (D.C. Cir. 1992), in
support of his argument that, when calculating his initial
custody classification, the BOP incorrectly classified his
“failure to appear” for community supervision on a prior
United States Court of Appeals
Fifth Circuit
F I L E D
August 17, 2004
Charles R. Fulbruge III
Clerk

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No. 04-10106
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conviction as “absconding” or an “escape” from community
supervision. Gabriel argues that, due to the classification
error, he was ineligible for placement in less restrictive
custody.
In the context of a 28 U.S.C. § 2241 petition, the district
court’s determinations of law are reviewed de novo and its
findings of fact are reviewed for clear error. See Royal v.
Tombone, 141 F.3d 596, 599 (5th Cir. 1998) (citation omitted).
As a general rule, inmates have no protected liberty interest in
initial custodial classification. See Wilkerson v. Stalder,
329 F.3d 431, 435-36 (5th Cir.), cert. denied, 124 S. Ct. 432
(2003). Absent an abuse of discretion by prison officials, the
custodial classification will be upheld. Id. at 436.
Gabriel’s reliance on Sellers is misplaced because the
record in Gabriel’s case contains administrative records from the
BOP informing him that his classification status was consistent
with the prison classification manual. Cf. Sellers, 959 F.2d
at 312 (absence of administrative records for verification
purposes). The classification manual used by the BOP includes
the concepts of “failure to appear” and “absconding” from
community supervision within the broad definition of “escape.”
Gabriel has failed to show that the BOP abused its discretion in
assigning his initial custodial classification. See Wilkerson,
329 F.3d at 436. Accordingly, because Gabriel has no
constitutional right in his initial custodial classification and

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because the record reflects that the BOP did not abuse its
discretion in assigning his initial classification, the district
court did not err in denying Gabriel’s 28 U.S.C. § 2241 petition.
See Royal, 141 F.3d at 599. The judgment of the district court
is AFFIRMED.

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