* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable Clarence A. Brimmer, District Judge, United States District Court for the District of Wyoming, sitting by desig nation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 21 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

GARY WARREN,

Petitioner-Appellant,

v. JOHN ASHCROFT, United States Attorney General; ROBERT A. HOOD, Warden, United States Penitentiary ADM Maximum Florence,

Respondents-Appellees. No. 04-1020 (D.C. No. 02-MK-2125) (D. Colo.)

ORDER AND JUDGMENT *

Before HARTZ , and BALDOCK , Circuit Judges, and BRIMMER , ** District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of1 Contrary to respondents’ contention, petitioner’s n otice of appeal was

timely filed. Under Fed. R. App. P. 4(a)(1)(B), pe titioner had sixty days in which to file his notice of appeal because an officer of the United States is a party to this appeal. The district court’s order was entere d on November 21, 2003. Petitioner’s notice of appeal was file-stamped in t he district court on January 14, 2004. R. Vol. I, tab 39. -2- this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. In this appeal we are required to decide whether 18 U.S.C. § 4206(d) (repealed) applies to all of the sentences imposed on petitioner between 1976 and 1989, including those imposed under 18 U.S.C. § 420 8(a)(2) (repealed) and 18 U.S.C. § 4205(b)(2) (repealed). Agreeing with the district court that § 4206(d) does apply to all of his sentences, we affirm. Petitioner’s conviction history began in January 19 76, when he was first convicted of bank robbery and ended in December 198 8. Between those two dates, he amassed nine other convictions for bank r obbery and escape. Petitioner, who is serving an aggregate term-in-effect of eighty-nine years based on these convictions, challenges the Bureau of Prison’s calc ulation of his release date, now determined to be August 2031. Petitioner proceeds under 28 U.S.C. § 2241. We have jurisdiction under 28 U.S.C. § 2253(a), 1 and we review the denial of relief under § 2241 de novo. Gamble v. Calbone , 375 F.3d 1021, 1027 (10th Cir. 2004).-3-

Section 4206(d) at the time pertinent to this appea l stated: Any prisoner, serving a sentence of five years or l onger, who is not earlier released under this section or any other ap plicable provision of applicable law, shall be released on parole afte r having served two-thirds of each consecutive term or terms, or af ter serving thirty years of each consecutive term or terms of more tha n forty-five years including any life term, whichever is earlier: Provided, however, That the Commission shall not release such prisonerif it determines that he has seriously or frequently violated instit ution rules and regulations or that there is a reasonable probabili ty that he will commit any Federal, State, or local crime. The provisions of this section apply only to offens es committed before November 1, 1987. Edmundson v. Turner , 954 F.2d 510, 512 n.2 (8th Cir. 1992). Petitioner argues that the application of this stat ute to some of his consecutive sentences is violative of the principle s of ex post facto and double jeopardy and further infringes on his rights to due process and equal protection. Without repeating the thorough analysis of the dist rict court, we emphasize that the main principle driving this case is the fact th at petitioner is not disadvantaged by the application of § 4206(d) to his sentences. Under the prior law in effect when his earlier sentences were imposed, parole det erminations were discretionary with the parole board after acquiesce nce by the sentencing court.
See § 4208(a)(2); § 4205(b)(2); see also Bowles v. United States , 49 Fed. Appx. 768, 769 (10th Cir. Oct. 8, 2002) (setting out textof § 4208(a)(2) and noting that it was recodified in 18 U.S.C. § 4205(b)(2)). Section 4206(b), in contrast, provides for mandatory parole, subject to some narr ow exceptions. Because-4-

convicted persons have no right to parole before th eir sentences are fully served, Greenholtz v. Inmates of Nebraska Penal and Correct ional Complex , 442 U.S. 1, 7 (1979), petitioner is actually benefitted by the application of this statute to his sentences because he has acquired a mandatory relea se date, something unavailable to him under prior law. Petitioner’s a rguments against the retroactive application of this statute to his case is unavaili ng because he has not been disadvantaged thereby. United States v. Orr , 68 F.3d 1247, 1252 (10th Cir. 1995). As a final matter, respondents correctly argue thatUnited States Attorney General John Ashcroft is improperly named as a resp ondent in this case. The district court noted this argument but did not addr ess it. Because the attorney general is an improper party in a habeas appeal, Blango v. Thornburgh , 942 F.2d 1487, 1492 (10th Cir. 1991), Mr. Ashcroft is herebyDISMISSED from this appeal. The judgment of the district court is AFFIRMED.

Entered for the Court

Clarence A. Brimmer District Judge