Davidson v. US Dept of Justice

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 15, 2000
• Docket: 00-30279
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 00-30279 Summary Calendar _____________________

EDWARD W. DAVIDSON,

Plaintiff-Appellant,

versus

UNITED STATES DEPARTMENT OF JUSTICE; JANET RENO; JAMES B. TUCKER; JOHN R. SIMPSON; KATHLEEN M. HAWK,

Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana (99-CV-447) _________________________________________________________________ November 15, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Edward W. Davidson, federal prisoner # 87586-024, is serving

two concurrent life sentences pursuant to a 1981 federal guilty-

plea conviction for conspiracy to kidnap and a 1981 state

(Mississippi) guilty-plea conviction for murder. (Davidson has

moved for leave to supplement the record on appeal. Because the

materials at issue were not considered by the district court, the

motion is DENIED. See United States v. Flores, 887 F.2d 543, 546

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. (5th Cir. 1989).)

Davidson appeals, pro se, the dismissal of his 28 U.S.C. §

2241 habeas petition as successive to his 7 September 1995, 28

U.S.C. § 2241 habeas petition. Both petitions challenged his

parole proceedings.

Pursuant to 28 U.S.C. § 2244(a), a district judge is not

required to entertain a habeas application inquiring into a

person’s detention pursuant to a United States court judgment if it

appears that the legality of such detention has been determined by

a United States court on a prior application for a habeas writ.

Interpreting a prior, but substantially similar, version of this

statute, our court held that 28 U.S.C. § 2244(a) applied to 28

U.S.C. § 2241 habeas petitions. See United States v. Tubwell, 37

F.3d 175, 178 (5th Cir. 1994). Our court has not yet determined,

however, whether the gate-keeping provisions of 28 U.S.C. §

2244(b), which require certification by a court of appeals before

a successive application may be filed in the district court, apply

to 28 U.S.C. § 2241 petitions. See Davis v. Fechtel, 150 F.3d 486,

490-91 (5th Cir. 1998). That issue need not be resolved in this

case, because, even if it were decided in Davidson’s favor and he

was not subjected to such gate-keeping requirements, there would be

no reversible error arising from the district court’s discretionary

dismissal of his case as successive under 28 U.S.C. § 2244(a).

Restated, the district court did not abuse its discretion in

2 dismissing, under 28 U.S.C. § 2244(a), Davidson’s instant § 2241

petition as successive. See McGary v. Scott, 27 F.3d 181, 183 (5th

Cir. 1994). Davidson has failed to identify any erroneous legal

conclusion or clearly erroneous factual finding by the district

court. See id. Moreover, the jurisprudence interpreting the prior

version of 28 U.S.C. § 2244(a) supports the dismissal of Davidson’s

petition, because he has not shown: (1) cause for failing to raise

in his 1995 petition any new claims arguably raised by his instant

petition and prejudice arising from the asserted errors; or (2)

that refusal to hear his claims will result in a fundamental

miscarriage of justice. See Tubwell, 37 F.3d at 178; McCleskey v.

Zant, 499 U.S. 467, 494-95 (1991).

MOTION DENIED; JUDGMENT AFFIRMED.