Stephen Rivkin v. Rebecca Tamez , 351 F. App'x 876 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 29, 2009
No. 09-10414 Charles R. Fulbruge III
Summary Calendar Clerk
STEPHEN RAY RIVKIN
Petitioner - Appellant
v.
Warden REBECCA TAMEZ, FCI, Fort Worth,
Respondent - Appellee
Appeal from the United States District Court
for the Northern District of Texas, Fort Worth
USDC No. 4:09-CV-1
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Stephen Ray Rivkin, pro se, appeals the district court’s denial of his 28
U.S.C. § 2241 application for a writ of habeas corpus. We AFFIRM.
I.
A jury found Rivkin guilty of violating 18 U.S.C. § 922(g)(1) (felon in
possession of a firearm) and § 922(g)(3) (possession of a firearm by an unlawful
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10414
user of a controlled substance). He is serving a 41-month sentence at the Fort
Worth Correctional Institution.
On January 5, 2009, Rivkin filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2241. He sought habeas relief on the ground that the Bureau
of Prisons (“BOP”) had violated the Second Chance Act of 2007, Pub. L. No. 110-
199 (April 9, 2008), by failing to place him in a halfway house or residential
reentry center (“RRC”) to serve the final 12 months of his prison sentence. The
district court dismissed his petition for failure to exhaust administrative
remedies. The district court rejected Rivkin’s contention that pursuing
administrative remedies would be an exercise in futility, noting that Rivkin cited
no facts to support his implication that the BOP would categorically deny his
appeals. The court noted that the Warden had provided evidence that nine
inmates had requested consideration for more than 180 days’ placement in the
RRC, and that two had been granted such additional time. The court concluded
that the BOP might well be persuaded by a request made by Rivkin through the
administrative process to respond with a decision allowing him placement in an
RRC for more than 180 days. Rivkin filed a timely notice of appeal.
In his brief, Rivkin argues that the BOP abused its discretion and
exceeded its statutory authority when it denied him a sentence reduction
pursuant to 18 U.S.C. § 3621(e) after he completed a Residential Drug Abuse
Program. As the Warden points out in her brief, Rivkin’s brief challenges a
judgment in a separate case, Rivkin v. Tamez, No. 4:08-CV-733-A (N.D. Tex.
April 13, 2009). That case is on appeal to this court in No. 09-10778. Rivkin
does not make any arguments challenging the district court’s decision that he
failed to exhaust administrative remedies with respect to his claim that the BOP
violated the Second Chance Act. When an appellant fails to identify any error
in the analysis of the judgment from which he appeals, it “is the same as if he
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had not appealed that judgment.” Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
In his reply brief, Rivkin claims that he did file a brief in the proper case.
He cites page 4, paragraph 4, of his “Appeal,” in which he says that he argued
that the BOP has not implemented a policy for the Second Chance Act that he
can use as a vehicle to appeal administratively. The document to which Rivkin
refers is not his appellate brief but, instead, a document entitled “Appeal,” which
was filed in the district court on April 13, 2009. In response to the Warden’s
argument that he did not address exhaustion of remedies in his opening brief,
Rivkin states in his reply brief that the Warden “apparently did not read
Appellants [sic] original brief because clearly Mr. Rivkin asserted that an
attempt at administrative remedy would have been an exercise in futility. He
states this clearly on pg 14 in the last paragraph and cites Jones v. Bock 166
L.Ed 2d 798.” No such argument appears in Rivkin’s opening brief. However,
that argument does appear in the last paragraph of page 14 of his habeas
petition. “Argument by reference is not permitted; an appellant who requests
‘the adoption of previously filed legal and factual arguments . . . abandon[s
those] arguments by failing to argue them in the body of his brief.’” United
States v. Jackson, 549 F.3d 963, 972 n.6 (5th Cir. 2008) (quoting Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993)).
Although this court construes liberally the briefs of pro se litigants and
applies less stringent standards to parties proceeding pro se than to those
represented by counsel, “pro se parties must still brief the issues and reasonably
comply with the standards of [Federal Rule of Appellate Procedure] 28.” Grant
v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). Rivkin’s brief fails to challenge the
basis of the district court’s judgment in this case, and thus does not comply with
Rule 28. Even if we assume that the arguments presented in the documents
referenced in Rivkin’s reply brief have not been abandoned and are adequate to
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No. 09-10414
satisfy the requirements of Rule 28, we nevertheless affirm the district court’s
judgment, essentially for the reasons stated by the district court. Rivkin v.
Tamez, No. 4:09-CV-001-A (N.D. Tex. Feb. 12, 2009).1
AFFIRMED.
1
Rivkin’s motion to expedite the appeal is denied as unnecessary.
4