Valenzuela v. Morris , 245 F. App'x 397 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 21, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-10683
Conference Calendar
ENRIQUE VALENZUELA
Petitioner-Appellant
v.
E W MORRIS, Warden Big Spring Correctional Center
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:06-CV-24
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Enrique Valenzuela, federal prisoner # 07530-112, appeals from the
district court’s dismissal of his 28 U.S.C. § 2241 petition. Valenzuela’s
contention that the respondent should have been ordered to file an answer is
without merit. See Wottlin v. Fleming, 136 F.3d 1032, 1034 (5th Cir. 1998); see
also Rule 4(b), Rules Governing Section 2255 Proceedings. Valenzuela argues
*
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should not be published and is not precedent except under the limited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.
No. 06-10683
that Congress did not authorize a private contractor to control the conditions of
confinement, such as prisoner classification and eligibility for rehabilitative
programs. This argument is raised for the first time in this court and will not
be considered. Leggett v. Fleming, 380 F.3d 232, 236 (5th Cir. 2004).
Valenzuela’s challenge to the district court’s refusal to appoint counsel is
conclusional. Moreover, he has not shown that the interests of justice require
the appointment of counsel. See Schwander v. Blackburn, 750 F.2d 494, 502 (5th
Cir. 1985). Valenzuela's argument that he has served more prison time than a
United States citizen would have served is apparently based on the notion that
his entitlement to early release should be the same as that of a United States
citizen. However, there is no constitutional right to early release, and the denial
of early release is within the discretion of the Bureau of Prisons. Rublee v.
Fleming, 160 F.3d 213, 217 (5th Cir. 1998).
AFFIRMED.
2