Ortiz 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this opinion should not be published and is not precedent except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. 04-10611
Conference Calendar
JEFFREY M. ORTIZ,
Petitioner-Appellant,
versus
L. E. FLEMING, Warden, Federal Medical Center-Fort Worth,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CV-1442-Y
--------------------
Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Jeffrey M. Ortiz, federal prisoner # 85990-012, appeals from
the district court’s denial of his 28 U.S.C. § 2241 petition. In
that petition, Ortiz sought habeas corpus relief on the ground
that the Bureau of Prisons (“BOP”) violated his constitutional
rights by informing him he was eligible for early release under
18 U.S.C. § 3621(e)(2)(B) and then subsequently determining that
he was ineligible for early release. In an appeal from the
denial of habeas relief, “this Court reviews the district court’s
United States Court of Appeals
Fifth Circuit
F I L E D
August 17, 2004
Charles R. Fulbruge III
Clerk
United States Court of Appeals
Fifth Circuit
F I L E D
August 17, 2004
Charles R. Fulbruge III
Clerk

-- 1 of 2 --

No. 04-10611
-2-
determinations of law de novo and its findings of facts for clear
error.” Venegas v. Henman, 126 F.3d 760, 761 (5th Cir. 1997).
Ortiz did not have a constitutionally protected right to
early release under 18 U.S.C. § 3621(e)(2)(B). See Rublee v.
Fleming, 160 F.3d 213, 216-17 (5th Cir. 1998). Accordingly, the
district court properly denied Ortiz’s instant petition. This
appeal is without arguable merit and is thus frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because it
is frivolous, the respondent’s motion to dismiss the instant
appeal is GRANTED. All other outstanding motions are DENIED.
The instant appeal is DISMISSED AS FRIVOLOUS. See 5TH CIR.
R. 42.2.
MOTION TO DISMISS GRANTED; ALL OTHER OUTSTANDING MOTIONS
DENIED; APPEAL DISMISSED AS FRIVOLOUS.

-- 2 of 2 --