* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

** The Honorable Clarence A. Brimmer, District Judge, United States District

Court for the District of Wyoming, sitting by designation.

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, this panel has determined

unanimously that oral argument would not materially assist the determination of
1 Contrary to respondents’ contention, petitioner’s notice of appeal was

timely filed. Under Fed. R. App. P. 4(a)(1)(B), petitioner 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 entered on November 21, 2003. 

Petitioner’s notice of appeal was file-stamped in the district court on January 14,

2004. R. Vol. I, tab 39.

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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.

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(repealed) applies to all of the sentences imposed on petitioner between 1976 and

1989, including those imposed under 18 U.S.C. § 4208(a)(2) (repealed) and

18 U.S.C. § 4205(b)(2) (repealed).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 1976, when he was first

convicted of bank robbery and ended in December 1988. Between those two

dates, he amassed nine other convictions for bank robbery 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 calculation 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). 
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Section 4206(d) at the time pertinent to this appeal stated:

Any prisoner, serving a sentence of five years or longer, who is not

earlier released under this section or any other applicable provision

of applicable law, shall be released on parole after having served

two-thirds of each consecutive term or terms, or after serving thirty

years of each consecutive term or terms of more than forty-five years

including any life term, whichever is earlier: Provided, however,

That the Commission shall not release such prisoner if it determines

that he has seriously or frequently violated institution rules and

regulations or that there is a reasonable probability that he will

commit any Federal, State, or local crime.

The provisions of this section apply only to offenses 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 statute to some of his

consecutive sentences is violative of the principles 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 district court, we emphasize that

the main principle driving this case is the fact that 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 determinations were

discretionary with the parole board after acquiescence 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 text of § 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 narrow exceptions. Because
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convicted persons have no right to parole before their sentences are fully served,

Greenholtz v. Inmates of Nebraska Penal and Correctional 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 release date, something

unavailable to him under prior law. Petitioner’s arguments against the retroactive

application of this statute to his case is unavailing 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 that United States Attorney

General John Ashcroft is improperly named as a respondent in this case. The

district court noted this argument but did not address 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 hereby DISMISSED from this

appeal. 

The judgment of the district court is AFFIRMED.

Entered for the Court

Clarence A. Brimmer 

District Judge