Arrasmith v. United States

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FEB 1 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

MARTIN D. ARRASMITH,

Petitioner-Appellant,

v. No. 98-3214 (D.C. No. 98-3199-RDR) UNITED STATES OF AMERICA; (D. Kan.) JANET RENO, United States Attorney General; KATHLEEN M. HAWK, Director of Bureau of Prisons; J.W. BOOKER, Warden, United States Penitentiary, Leavenworth,

Respondents-Appellees.

ORDER AND JUDGMENT *

Before TACHA, BARRETT, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 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.

Petitioner Martin D. Arrasmith is a federal prisoner currently incarcerated

in Leavenworth, Kansas, serving a seventy-month sentence for being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). His projected date

of release from prison is July 21, 1999. In June 1996, Mr. Arrasmith successfully

completed a residential substance abuse treatment program and applied to the

Federal Bureau of Prisons for early release under 18 U.S.C. § 3621(e)(2)(B). The

Bureau determined Mr. Arrasmith’s conviction for unlawful possession of a

firearm by a felon constituted a “crime of violence” under 18 U.S.C. § 924(c)(3),

making him ineligible for a sentence reduction under § 3621(e)(2)(B). He then

filed the instant petition for habeas corpus relief pursuant to 28 U.S.C. § 2241 in

the district court challenging the Bureau’s denial of his request for sentence

reduction. Cf. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (“A petition

under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity

and must be filed in the district where the prisoner is confined.”). The district

court held the Bureau’s conclusion that a § 922(g)(1) conviction is a crime of

violence was not unreasonable or contrary to law and denied the petition. Mr.

Arrasmith appeals. He has also requested an expedited disposition, which we

grant.

-2- 2 The government did not respond to the petition in the district court and has

not filed a brief on appeal. However, it has submitted, as supplemental authority,

a decision from the Fifth Circuit indicating that Mr. Arrasmith filed an identical

petition while incarcerated within that circuit’s jurisdiction. See Venegas v.

Henman, 126 F.3d 760 (5th Cir. 1997). The Fifth Circuit affirmed the denial of

that petition on the merits of the precise issue he raises in the instant petition.

See id. at 765. The petition therefore is successive as a matter of law, and the

district court should not have considered it on the merits. See 28 U.S.C.

§ 2244(a)

We therefore VACATE the district court’s judgment and REMAND the

case to the district court with instructions to dismiss the petition. The mandate

shall issue forthwith.

Entered for the Court

Deanell Reece Tacha Circuit Judge

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