1 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.

1

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

______________________

No. 04-10779

______________________ 

STEVEN M. GRIGGS

Plaintiff-Appellant

versus

UNITED STATES OF AMERICA, ET. AL.

Defendants-Appellees

________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 4:04-CV-204A

________________________

Before JOLLY, HIGGINBOTHAM, and DENNIS, Circuit Judges.

PER CURIAM:1

Steven Griggs appeals the district court’s denial of his habeas petition under

28 U.S.C. § 2241. In denying the petition, the district court held that Griggs had

no protected liberty interestin his conditional release prior to the expiration of his

sentence under 18 U.S.C. § 3621(e). For the reasons below, we VACATE and

REMAND.

Background

1. Statement of Facts

United States Court of Appeals

Fifth Circuit

F I L E D

November 8, 2007

Charles R. Fulbruge III

Clerk
2

In 1994, Steven Griggs plead guilty to conspiracy to manufacture,

distribute, and possess 100 grams or more of methamphetamine, in violation of

21 U.S.C. §§ 841(a)(1), 846. He received a two-level enhancement at sentencing

because he possessed a firearm during the offense; his ultimate sentence was 292

months of imprisonment. In November of 1995, he agreed to participate in the 500

Hour Residential Drug AbuseProgram (“DAP”) atthe El Reno, OklahomaFederal

Correctional Institution. He entered the residential phase on December 29, 1995.

Four days later, on January 2, 1996, he was told he was ineligible for early

release under the DAP guidelines because his crime was considered a crime of

violence under 18 U.S.C. § 924(c)(3) and Program Statements 5162.02 and

5330.10. After completing the residential phase in January of 1997, Griggs filed

a Request for Administrative Remedy seeking a one-year sentence reduction

under 18 U.S.C. § 3621(e)(2)(B). The Bureau of Prisons (“BOP”) denied the request

on the ground that his drug conviction with a sentence enhancement for

possession of a firearm, constituted a crime of violence, rendering him ineligible

for early release. Griggs’s administrative appeals were unavailing.

In January of 1998, Griggs filed a § 1983 suit in the United States District

Court for the District of Columbia, challenging the BOP’s ineligibility

determination. The case was transferred to the United States District Court for

the Western District of Oklahoma, as Griggs was then incarcerated atthe Federal

Transfer Center in Oklahoma City. In December of that year, the Oklahoma

federal court dismissed his suit for failure to state: 1) a § 1983 claim because

defendants were not state officials; 2) a claim for compensatory damages because

defendants were entitled to sovereign immunity; and 3) a due process claim

because he had no protected liberty interestin his sentence reduction.The district

court construed his request for injunctive or declaratory relief as a 28 U.S.C. §

2241 petition. The Oklahoma federal court adopted the Magistrate’s Report and

Recommendation, which concluded that Griggs “is entitled to be considered for a
3

§ 3621 sentence reduction . . .” The Oklahoma court then “directed [the BOP] to

consider . . . whether Plaintiff should receive a sentence reduction under 18 U.S.C.

§ 3621 for his successful completion of the drug treatment program without

reliance upon sentencing factors.” In January of 1999, the Government filed a

response indicating that in October, 1998, prior to the Oklahoma court’s judgment,

“[p]laintiff’s eligibility for early release pursuant to 18 U.S.C. § 3621(e) was

reviewed and granted on October 20, 1998. Plaintiff’s projected satisfaction date

has been recalculated. . . .” (emphasis in the original). 

By September of 2001, Griggs had been transferred to the Federal Medical

Center in Fort Worth, Texas. At that time, he filed a motion in the Oklahoma

district court seeking to compel the BOP to perform its duty. According to Griggs,

after his transfer the BOP rescinded his eligibility for a sentence reduction. He

alleged that the BOP’s decision violated a constitutionally-protected liberty

interest in his early release, created at the time the BOP determined that he was

eligible under § 3621(e). The BOP, on the other hand, explained that its decision

to rescind was based on a recent United States Supreme Court decision upholding

the validity of the 1997 version of the regulations that permitted the BOP within

its statutory discretion to consider sentencing factors.See Lopez v. Davis, 531 U.S.

230, 235 (2001). 

Ruling on Griggs’ motion to compel, the Oklahoma federal court held that

no liberty interestin a sentence reduction had been created, and that Griggs could

not establish a violation of due process. In addition, the Oklahoma federal court

determined that the BOP’s decision did not constitute retroactive application of

a new BOP policy because the BOP had always maintained that offenders with

sentence enhancements for possession of a firearm at the time of the offense were

ineligible for § 3621(e) early release. On appeal, the Tenth Circuit construed

Griggs’ motion to compel as a § 2241 petition and determined that the Oklahoma
4

federal court lacked jurisdiction since Griggs was confined in Texas. The Tenth

Circuit took a “quick look” at the merits of Griggs’ claims, and “conclude[d] that

plaintiff's claims have sufficient merit to warrant a transfer to the Northern

District of Texas.” Griggs, 79 F. App’x at 363. 

Accordingly, the Tenth Circuit vacated the second Oklahoma federal court

judgment on the motion to compel and remanded the case with instructions to

transfer the case to the United States District Court for the Northern District of

Texas. The Texas district court adopted the reasoning of the Oklahoma district

court and denied the petition. Griggs timely appeals.

2. Conditional Release under 18 U.S.C. § 3621(e)

As incentive for inmate participation in substance abuse treatment

programs, 18 U.S.C. § 3621(e)(2)(B) provides that prisoners convicted of

“nonviolent offenses who complete [such a program] may apply for a sentence

reduction of up to one year; the determination lies in the discretion of the director

ofthe Bureau of Prisons (“BOP”).” In May of 1995,the BOPpromulgated 28 C.F.R.

§ 550.58, which defines “nonviolent offense” by excluding those offenders convicted

of offenses that meetthe definition of“crime of violence”in 18 U.S.C. 924(c)(4).See

Warren v. Miles, 230 F.3d 688, 691 (5th Cir. 2000). In July of 1995, the BOP

issued Program Statement 5162.02, which defines “crime of violence” within the

context of § 3621. Id. BOP’s Change Notice CN-01 to Program Statement 5162.02,

clarified the definition of “crime of violence” by listing examples of ineligible

inmates and included inmates serving a sentence for drug conspiracy enhanced

for possession of a firearm, like Griggs. Id. at 691-92. 

We have held that, under the 1995 version of § 550.58,the BOP’s “exclusion

of . . . drug convictions with enhanced sentences due to possession of a weapon

from eligibility for early release after substance abuse treatment is consistent

with the letter and spirit of the [BOP]’s authority as derived from [§ 3621(e)].”
2The Operations Memorandum states: 

To maintain eligibility upon transfer out of the Tenth Circuit, an inmate whose

offense includes sentence enhancement factors must have completed the

residential drug treatment program on or after April 28, 1998 [i.e., the date the

Tenth Circuit issued its decision in Fristoe], in a Tenth Circuit institution.

5

Venegas v. Henman, 126 F.3d 760, 761-62 (5th Cir. 1997). The Tenth Circuit,

however, takes a different approach. Faced with the same question in 1998, that

Circuit held that the language of the statute “does not permit resort to sentencing

factors or sentencing enhancements attached to the nonviolent offense[]” and that

the BOP’s construction of the 1995 version of the regulations was therefore

impermissible. Fristoe, 144 F.3d at 631. In essence, the 1995 regulations would

not apply in the Tenth Circuit, thus rendering inmates, like Griggs, eligible for

a sentence reduction; the regulations, however, would apply within the Fifth

Circuit rendering inmates, like Griggs, ineligible. 

The BOP published a new § 550.58 in 1997. While the new version of the

regulation still excluded offenders in possession of a firearm during the offense,

the 1997 regulation did not do so by defining “prisoner convicted of a nonviolent

offense” or “crimes of violence.” Lopez, 531 U.S. at 235. “Instead, the [1997]

regulation relie[d] upon ‘the discretion allotted to the Director of the Bureau of

Prisons in granting a sentence reduction to exclude [enumerated categories of]

inmates.’” Id. (quoting Drug Abuse Treatment and Intensive Confinement Center

Programs: Early Release Consideration, 62 Fed. Reg. 53,690 (Oct. 15, 1997)). In

2001, the Supreme Court upheld the validity of the 1997 version of § 550.58. See

Lopez, 551 U.S. at 244.

According to the BOP’s Operations Memorandum,2 an inmate who

successfully completes the residential phase of a DAP in a Tenth Circuit

Institution remains eligible for his sentence reduction even if he is later

transferred out of the Tenth Circuit. The Memorandum states, however, that in
3Griggs satisfiedadministrative exhaustionrequirements. See Griggs v. UnitedStates,

2004 WL 1084816 *1 & n.2 (N.D. Tex. May 13, 2004) (unpublished). 

6

order to maintain that eligibility “an inmate whose offense includes sentence

enhancement factors must have completed the residential drug treatment

program on or after April 28, 1998 in a Tenth Circuit institution.” Griggs

completed the residential program before April 28, 1998. 

Analysis

On appeal,3 Griggs argues 1) that the BOP violated his due process rights

by retroactively applying a more restrictive version of 28 C.F.R. § 550.58, i.e., the

1997 regulations, in deciding to rescind the early release; 2) that his due process

rights were violated when the BOP rescinded the § 3621(e) sentence reduction

without any written notification or opportunity to be heard and 3) his rights to the

sentence reduction should be preserved as res judicata and/or collateral estoppel.

The Government responds with several arguments: 1) the conditions of the

Operations Memorandum are not fulfilled, so Griggs did not maintain his

eligibility when he was transferred from the Tenth to the Fifth Circuit; 2)the BOP

official who denied Griggs eligibility erroneously relied solely on Lopez, but should

have relied on the Fifth Circuit’s opinion in Venegas, which upheld the BOP’s

1995 regulations; 3) even if the denial was based on Lopez, the BOP has always

maintained that felons like Griggs are ineligible, and therefore the 1997

regulation as applied to Griggs was no more restrictive than policies in existence

when it granted Griggs eligibility; and 4) res judicata is not applicable to

successive federal habeas petitions. 

We agree with Griggs that res judicata bars the BOP from raising any

arguments that Griggs must now be determined ineligible based on sentencing
4 We may apply res judicata sua sponte. See Russell v. SunAmerica Sec., Inc., 962 F.2d

1169, 1172 (5th Cir. 1992) (res judicata may be raised sua sponte because the court may not

ignore the legal effect of uncontroverted facts or decline to consider application of controlling

rules of law to dispositive facts). Moreover, in the pleadings below, the Government interprets

Griggs’ argument as raising res judicata and collateral estoppel issues, and presents a

counterargumentthatthe “law ofthe case” should be the applicable doctrine. The Government

states in the record below: 

Plaintiff argues he has been eligible for early release for nearly three years, and

the Bureau of Prisons cannot now, on a whim, take away that vested interest,

essentially arguing the principle of res judicata or issue preclusion. Defendant

counters that the “law of the case” doctrine, and not issue preclusion, is

applicable to this case. 

Defendant’s Response to Plaintiff’s Motion to Compel An Officer Or Agency Of the United States

To Perform Its Duty, R. 391, 393-94 (Sept. 21, 2001). We agree with Griggs. Griggs’ claims

below and on appeal are arguments based on the principles of res judicata to enforce a previous

judgment and compel the satisfaction of that judgment. See “Motion To Compel An Officer or

Agency Of The United States to Perform Its Duty.” R. at 376. Construed liberally, Griggs’

motion requests a federal court to enforce the previous order and grant of habeas relief. 

7

factors.4 Since the BOP’s asserted bases below and on appeal for rescinding

Griggs’ eligibility rely on the applicability of sentencing factors, we now reinstate

Griggs’ eligibility and order the BOP to comply with the previous court order and

determine “whether Plaintiff should receive a sentence reduction under 18 U.S.C.

§ 3621 for his successful completion of the drug treatment program without

reliance upon sentencing factors.”

1. Standard of Review

We review issues of law related to a denial of habeas relief under § 2241 de

novo. Royal v. Tombone, 141 F.3d 596, 599 (5th Cir. 1998). We also review pro se

briefs liberally. Johnson v. Quarterman, 479 F.3d 358, 359 (5th Cir. 2007) (citing

Haines v. Kerner, 404 U.S. 519, 520 (1972)).

2. Res judicata Demands BOP Determine Griggs’ Eligibility for a Sentence

Reduction Without Considering Sentencing Factors

The dispositive question in this appeal is whether the BOP can consider

sentencing factors, such as the possession of a firearm during the commission of

the crime, in determining Griggs’ eligibility for a sentence reduction under 18
8

U.S.C. § 3621. This exact issue was already litigated between the parties. In the

original action before the Oklahoma district court, the district court considered

arguments from both Griggs and the BOP concerning the use of sentencing factors

in determining Griggs’ eligibility for a sentence reduction. See Defendant’s Motion

to Dismiss and Brief to Support, at R. 126-27 (May 26, 1998). 

The district court granted Griggs habeas relief and fully adopted the

Magistrate’s Report and Recommendation, which rejected BOP’s use of sentencing

factors to determine Griggs’ eligibility and concluded, as a matter of law, that

Griggs “is entitled to be considered for a §3621 sentence reduction . . . .” R. at 344.

To implement this decision, the district court granted habeas relief “to the extent

that the Bureau of Prisons is directed to consider . . . without reliance on

sentencing factors, whether plaintiff should receive a sentence reduction under 18

U.S.C. §3621.” R. at 364a. The BOP never appealed the district court’s adoption

of the Magistrate’s Report and Recommendation nor the order granting habeas

relief; therefore the report and order are final judgments with res judicata effect.

Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 960 F.2d 1286, 1293 (5th Cir.

1992). We must now give full res judicata effect to this original final judgment.

United States v. Davenport, 484 F.3d 321, 327 n.10 (5th Cir. 2007). 

“Res judicata is appropriate if (1) the parties are identical or in

privity; (2) the judgment in the prior action was rendered by a court

of competent jurisdiction; (3) the prior action was concluded to a final

judgment on the merits; and (4) the same claim or cause of action was

involved in both suits. . . . If these conditions are satisfied res judicata

prohibits either party from raising any claim or defense in the later

action that was or could have been raised in support of or in

opposition to the cause of action asserted in the prior action.” 

Matter of Swate, 99 F.3d 1282, 1286 (5th Cir. 1996). The conditions for res

judicata are fulfilled here. The parties are identical; the Oklahoma district court

had competentjurisdiction over the original action;the prior action was concluded
5 We read the Magistrate’s Report and Recommendation adopted by the district court

as concluding that the use of sentencing factors in determining Griggs’ eligibility is not

appropriate. “The effect of a decree, as an adjudication conclusive on the parties, is not

determined by isolated passages in opinion, but by examination of issues made and intended

to be submitted and decided.” State of Okla. v. State of Texas, 272 U.S. 21, 42-43 (1926). 

6 The Government cites to Patrasso v. Nelson, 121 F.3d 297, 301 (7th Cir. 1997) to

argue that res judicata categorically does not apply to federal habeas petitions. The

Government misconstrues Patrasso because it is clear that Patrasso is discussing the res

judicata effect of a state post-conviction judgment on a federal habeas petition. Id; Carter v.

Estelle, 677 F.2d 427, 442 n.10 (5th Cir. 1982). Here, we are discussing the res judicata effect

of a federal court decision on the same claim in a subsequent federal habeas action urging the

court to enforce the previous decision. 

The Government is partially correct in that the res judicata doctrine applies differently

in the habeas context; however, any differences are not applicable in this case. “Modified” res

judicata applies in the habeas context. United States v. Orozco-Ramirez, 211 F.3d 862, 867-68

(5th Cir. 2000); see also Schlup v. Delo, 513 U.S. 298, 319 (1995) (calling it a “qualified

application of the doctrine of res judicata.”) In this “modified” form, res judicata does not fully

apply in the habeas context when a previous court decision denies habeas relief. McCleskey v.

Zant, 499 U.S. 467, 480-81 (1991); Sanders v. United States, 373 U.S. 1, 7 (1963) (“At common

law, the denial by a court or judge of an application for habeas corpus was not res judicata.”).

On the other hand, a judgment granting a petitioner habeas relief is res judicata on the

issues of law and fact necessarily involved in the result. Collins v. Loisel, 262 U.S. 426, 430

(1923); Anselmo v. Hardin, 253 F.2d 165, 169 (3d Cir. 1958); Harris v. Biszkowicz, 100 F.2d

854, 856 (8th Cir. 1939); see also Younan v. Caruso, 59 Cal. Rptr. 2d 103, 109 (Cal. Ct. App.

1996) (“While a final judgment granting habeas corpus relief is res judicata. . . . an order

denying the writ is not.”) (internal citations omitted). An order granting habeas corpus, unlike

a denial of habeas relief, is a “final judgment” and is res judicata on issues in subsequent

habeas petitions, since the petitioner is now enforcing a final court order. Compare Patterson

v. Haskins, 470 F.3d 645, 661 (6th Cir. 2006); In Re Moody, 817 F.2d 365, 368 (5th Cir. 1987)

(“That further proceedings were necessary to enforce the judgment . . . . does not mitigate the

effect ofthe order. A judgment becomes final despite the fact thatit has not been executed. The

finality of a decree is not impaired because some future order of the court may become

necessary to carry it into effect.”), with Potts v. Zant, 638 F.2d 727, 738 (5th Cir. 1981) (“The

doctrine of abuse of the writ has developed as a result of the familiar rule of law that a denial

of an application for habeas corpus is not res judicata with respect to subsequent

applications.”). The case-law permits the application of res judicata to successful habeas

petitions as part and parcel ofthe power ofthis court to enforce a final judgment in subsequent

9

to a final judgment (not appealed) on the merits; and the same cause of action is

asserted in both habeas petitions, i.e., whether determining Griggs’ eligibility

using sentencing factors is appropriate.5 Res judicata applies to any BOP

argument that use of sentencing factors is now appropriate in considering whether

to grant Griggs a sentence reduction.6
proceedings, whereas unsuccessful habeas petitions are subject to the “abuse of the writ”

doctrine empowering federal courts to control the potentially endless successive petitions

attacking the conviction after an initial denial of habeas relief. Cf. In re Cain, 137 F.3d 234,

235-36 & n.1 (5th Cir. 1998) (describing the federal court’s “gate-keeping” function under

AEDPA and the “abuse of writ” doctrine). 

10

Since the BOPlater rescinded Griggs’ eligibility based on sentencing factors

by citing to Lopez and Venegas, which are cases that upheld the BOP’s use of

sentencing factors in eligibility decisions, the BOP has failed to comply with the

binding effect of the previous judgment barring the use of sentencing factors. We

must now issue a remedy necessary to protect Griggs’ judgment in the original

district court decision. “Prevailing parties are entitled to the protection and fruits

ofthe judgments which become final.” Cliett v. Hammonds, 305 F.2d 565, 572 (5th

Cir. 1962).

The intervening transfer of the case from the Tenth Circuit to the Fifth

Circuit does not affect the res judicata effect of the final Oklahoma court

judgment. See In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171,

1177 (D.C. Cir. 1987) (Ginsburg, D.H., J., concurring) (“[T]here are some

circumstances in which a federal court is bound to apply the decisions of another

circuit, but they are the rare instances where a preclusion doctrine so requires.

The doctrines of res judicata, collateral estoppel, and law of the case come to

mind.”); Skil Corp. v. Millers Falls Co., 541 F.2d 554, 558 (6th Cir. 1976) (applying

res judicata effect to decision from the Seventh Circuit). Morever, even if the

original basis for the Oklahoma district court decision was erroneous based on

changing intervening law, courts respect the finality of a previous judgment and

accord the judgment full res judicata effect. Fed. Dep’t Stores, Inc. v. Moitie, 452

U.S. 394, 398 (1981) (“Nor are the res judicata consequences of a final, unappealed

judgment on the merits altered by the fact that the judgment may have been

wrong or rested on a legal principle subsequently overruled in another case.”);
7 Moreover, the BOP concedes the agency decision to rescind Griggs’ eligibility was

based solely (and erroneously) on Lopez. Reference to other reasons for the decision to rescind

Griggs’ eligibility, including the Operations Memorandum, offered for the first time on appeal

is a “post hoc rationalization” advanced by an agency seeking to defend past agency decision

against attack. See Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962)

(“The courts may not accept appellate counsel’s post hoc rationalizations for agency action;

[SEC. v. Chenery Corp., 332 U.S. 194, 196 (1947)] requires that an agency’s discretionary order

be upheld, if at all, on the same basis articulated in the order by the agency itself.”). In

Chenery, the Court concluded that: 

[A] simple but fundamental rule of administrative law . . . is . . . that a

reviewing court, in dealing with a determination or judgment which an

administrative agency alone is authorized to make, must judge the propriety of

such action solely by the grounds invoked by the agency. If those grounds are

inadequate or improper, the court is powerless to affirm the administrative

action . . . .

Id. We can also reject the Operations Memorandum argument and other post-hoc

rationalizations on this ground. 

11

RecoverEdge L.P. v. Pentecost, 44 F.3d 1284, 1296 (5th Cir. 1995) (“It is well

settled, however, that even arguably erroneous judgments have preclusive effect

ifthe requirements for collateral estoppel are satisfied.”) (citing numerous Circuit

cases for this proposition); Matter of Teal, 16 F.3d 619, 622 (5th Cir. 1994) (“This

conclusion comports with the well-known rule that a federal court may not

abrogate principles of res judicata out of equitable concerns . . . . Indeed, it must

give res judicata effect to a prior judgment even if it would be voidable on appeal

because of legal error.”); In re Atlas Sewing Centers, Inc., 437 F.2d 607, 614 (5th

Cir. 1971) (“[Res judicata] does not allow parties to await the event and then to

determine that a judgment acquiesced in earlier oughtto have been challenged.”).

Therefore, even if the BOP may now challenge the basis for the district court

decision as arguably wrong under Fifth Circuit case-law or subsequent Supreme

Court decisions, the finality and binding effect of the decision is unaffected. 

The res judicata analysis also renders irrelevant the Government’s use of

the Operations Memorandum as a basis to bar Griggs from maintaining his

eligibility upon transfer outside of the Tenth Circuit.7 The Operations
12

Memorandum is irrelevant to his appeal, because res judicata preserves his

eligibility after transfer. The Operations Memorandum offers Griggs a regulatory

route to “maintain” his eligibility, but Griggs does not need this regulatory

mechanism to maintain his eligibility. Res judicata provides an alternative and

sufficient mechanism that maintains his eligibility without the consideration of

sentencing factors. 

The Government’s cited reasons for rescinding Griggs’ eligibility are all

based on Griggs’ sentencing factors, which is a violation ofthe previous final court

order from the Oklahoma district court. Therefore, we now GRANT Griggs habeas

relief and REVERSE the Texas district court judgment and REMAND this case

to the Texas district court for it to enforce the previous final court order and

ensure the BOPdetermines “whether Plaintiff should receive a sentence reduction

under 18 U.S.C. § 3621 for his successful completion of the drug treatment

program without reliance upon sentencing factors” consistent with this opinion

and within a reasonable time period.