F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 30 2000 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk
ISA ABD’ALLAH RAMADAN SHABAZZ,
Petitioner-Appellant,
v. No. 00-6149 (W.D. Okla.) FRANK KEATING, Governor of the State of (D.Ct. No. CIV-00-85-T) Oklahoma; OKLAHOMA PARDON AND PAROLE BOARD; PHILLIP L. STAMBECK, Assistant District Attorney of Oklahoma County, Oklahoma; JAMES SAFFLE, Director of the Oklahoma Department of Corrections,
Respondents-Appellees. ____________________________
ORDER AND JUDGMENT *
Before BRORBY, KELLY, 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 appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. therefore ordered submitted without oral argument.
Appellant Isa Abd’allah Ramadan Shabazz (Mr. Shabazz), a state prisoner
appearing pro se, appeals the district court’s decision denying his habeas petition
as a second and successive petition. We affirm.
After a review of the record, we find it helpful to our determination to
provide some procedural history relating to Mr. Shabazz’s previous litigation
before this and other courts. In 1970, an Oklahoma jury found Mr. Shabazz guilty
of first degree rape after former conviction of a felony, and assessed punishment
at a term of 1,000 years. See Fields v. State, 501 P.2d 1390, 1390-91 (Okla.
Crim. App. 1972). 1 On appeal, the Oklahoma Court of Criminal Appeals
considered Mr. Shabazz’s 1000-year sentence a life sentence. Id. at 1393. In
addition to this conviction and sentence, Mr. Shabazz was also incarcerated for
various other Oklahoma state court convictions, including robbery, forgery in the
second degree, and receiving a taken credit card. As of 1989, Mr. Shabazz had
1 Two points of clarification are necessary. First, Mr. Shabazz was Herbert Fields co-defendant in the Fields decision. See 501 P.2d at 1390. Second, at the time of his conviction, Mr. Shabazz’s legal name was Jimmy Louis Phillips. See Shabazz v. Keating, 977 P.2d 1089, 1089 (Okla. 1999), petition for cert. filed, (No. 98–9765) 58 U.S.L.W. 3222 (Jun. 7, 1999).
-2- filed at least twenty-two habeas actions, including at least seven relating to his
1970 conviction. Since then, and excluding the petition now on appeal, Mr.
Shabazz has filed at least one state habeas petition and four federal habeas
petitions, seeking habeas relief.
In addition to these habeas requests, on November 9, 1999, Mr. Shabazz
filed a motion with this court seeking permission to file a second or successive
habeas corpus petition under 28 U.S.C. § 2244, challenging the Oklahoma
Supreme Court’s decision on his most recent state habeas petition. See Shabazz,
977 P.2d at 1092-93, 1095 (ruling on issues related to Mr. Shabazz’s denial of
parole and sanctions imposed against him). The crux of Mr. Shabazz’s November
9, 1999 motion centered on the state’s decision to deny him parole. As specific
grounds for relief, Mr. Shabazz contended the Board arbitrarily denied him
parole: 1) based on his legal name change from “Jimmy Louis Phillips” to his
current Islamic name; and 2) because he exercised his right to access the courts,
vis-à-vis by filing a number of § 1983 and habeas actions. 2 On December 16,
2 Mr. Shabazz has filed numerous § 1983 actions against various prison officials, including several which we have considered on appeal. As a result of his numerous filings, Mr. Shabazz is recognized as a frequent filer and is under strict filing restrictions before he may submit § 1983 and other pleadings in this circuit and the federal district courts.
-3- 1999, we denied Mr. Shabazz’s motion concluding he failed to make the prima
facie showing required under § 2244(b)(2)(A) or (B).
In Mr. Shabazz’s latest federal habeas petition, which is the subject of this
appeal, he makes the same assertions contained in his November 9, 1999 motion.
The State of Oklahoma filed a motion to dismiss Mr. Shabazz’s petition as a
second or successive petition. The district court referred the petition to a
magistrate judge who recommended granting the state’s motion to dismiss. The
magistrate judge made this recommendation based on the fact this court
previously denied Mr. Shabazz permission to file a second or successive petition
on the same issues. Following the magistrate judge’s recommendation, the
district court granted the state’s motion to dismiss the petition with prejudice.
As a matter of clarification, we note the district court and this court have
construed Mr. Shabazz’s past habeas pleadings challenging the state’s denial of
parole as pleadings filed pursuant to 28 U.S.C. § 2254. However, we have held
that habeas pleadings which contest parole denials involve challenges to the
execution of a sentence under 28 U.S.C. § 2241, rather than the validity of a
sentence under 28 U.S.C. § 2254. See George v. Perrill, 62 F.3d 333, 334 (10th
Cir. 1995); cf. Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000). It is
-4- important to note our clarification of this matter does not change the outcome of
our prior decisions nor our decision in this case. We make this determination
even though we recognize our review of a second or successive § 2241 petition is
controlled by different criteria than for a second or successive § 2254 petition.
Specifically, we have held 28 U.S.C. § 2244(a) is the statute that limits the
filing of second or successive § 2241 petitions for federal prisoners. See George,
62 F.3d at 334 (applying the pre-Antiterrorism and Effective Death Penalty Act
version of § 2244(a)); see also Valona v. United States, 138 F.3d 693, 695 (7th
Cir. 1998) (reaching same conclusion applying the post-Antiterrorism and
Effective Death Penalty Act version of § 2244(a)); Triestman v. United States,
124 F.3d 361, 373 n.17 (2d Cir. 1997) (same). Under § 2244(a), we are not
required to entertain a § 2241 petition if the legality of the detention has been
determined on a prior application. See 28 U.S.C. § 2244(a). 3
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 30 2000 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk
ISA ABD’ALLAH RAMADAN SHABAZZ,
Petitioner-Appellant,
v. No. 00-6149 (W.D. Okla.) FRANK KEATING, Governor of the State of (D.Ct. No. CIV-00-85-T) Oklahoma; OKLAHOMA PARDON AND PAROLE BOARD; PHILLIP L. STAMBECK, Assistant District Attorney of Oklahoma County, Oklahoma; JAMES SAFFLE, Director of the Oklahoma Department of Corrections,
Respondents-Appellees. ____________________________
ORDER AND JUDGMENT *
Before BRORBY, KELLY, 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 appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
* 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. therefore ordered submitted without oral argument.
Appellant Isa Abd’allah Ramadan Shabazz (Mr. Shabazz), a state prisoner
appearing pro se, appeals the district court’s decision denying his habeas petition
as a second and successive petition. We affirm.
After a review of the record, we find it helpful to our determination to
provide some procedural history relating to Mr. Shabazz’s previous litigation
before this and other courts. In 1970, an Oklahoma jury found Mr. Shabazz guilty
of first degree rape after former conviction of a felony, and assessed punishment
at a term of 1,000 years. See Fields v. State, 501 P.2d 1390, 1390-91 (Okla.
Crim. App. 1972). 1 On appeal, the Oklahoma Court of Criminal Appeals
considered Mr. Shabazz’s 1000-year sentence a life sentence. Id. at 1393. In
addition to this conviction and sentence, Mr. Shabazz was also incarcerated for
various other Oklahoma state court convictions, including robbery, forgery in the
second degree, and receiving a taken credit card. As of 1989, Mr. Shabazz had
1 Two points of clarification are necessary. First, Mr. Shabazz was Herbert Fields co-defendant in the Fields decision. See 501 P.2d at 1390. Second, at the time of his conviction, Mr. Shabazz’s legal name was Jimmy Louis Phillips. See Shabazz v. Keating, 977 P.2d 1089, 1089 (Okla. 1999), petition for cert. filed, (No. 98–9765) 58 U.S.L.W. 3222 (Jun. 7, 1999).
-2- filed at least twenty-two habeas actions, including at least seven relating to his
1970 conviction. Since then, and excluding the petition now on appeal, Mr.
Shabazz has filed at least one state habeas petition and four federal habeas
petitions, seeking habeas relief.
In addition to these habeas requests, on November 9, 1999, Mr. Shabazz
filed a motion with this court seeking permission to file a second or successive
habeas corpus petition under 28 U.S.C. § 2244, challenging the Oklahoma
Supreme Court’s decision on his most recent state habeas petition. See Shabazz,
977 P.2d at 1092-93, 1095 (ruling on issues related to Mr. Shabazz’s denial of
parole and sanctions imposed against him). The crux of Mr. Shabazz’s November
9, 1999 motion centered on the state’s decision to deny him parole. As specific
grounds for relief, Mr. Shabazz contended the Board arbitrarily denied him
parole: 1) based on his legal name change from “Jimmy Louis Phillips” to his
current Islamic name; and 2) because he exercised his right to access the courts,
vis-à-vis by filing a number of § 1983 and habeas actions. 2 On December 16,
2 Mr. Shabazz has filed numerous § 1983 actions against various prison officials, including several which we have considered on appeal. As a result of his numerous filings, Mr. Shabazz is recognized as a frequent filer and is under strict filing restrictions before he may submit § 1983 and other pleadings in this circuit and the federal district courts.
-3- 1999, we denied Mr. Shabazz’s motion concluding he failed to make the prima
facie showing required under § 2244(b)(2)(A) or (B).
In Mr. Shabazz’s latest federal habeas petition, which is the subject of this
appeal, he makes the same assertions contained in his November 9, 1999 motion.
The State of Oklahoma filed a motion to dismiss Mr. Shabazz’s petition as a
second or successive petition. The district court referred the petition to a
magistrate judge who recommended granting the state’s motion to dismiss. The
magistrate judge made this recommendation based on the fact this court
previously denied Mr. Shabazz permission to file a second or successive petition
on the same issues. Following the magistrate judge’s recommendation, the
district court granted the state’s motion to dismiss the petition with prejudice.
As a matter of clarification, we note the district court and this court have
construed Mr. Shabazz’s past habeas pleadings challenging the state’s denial of
parole as pleadings filed pursuant to 28 U.S.C. § 2254. However, we have held
that habeas pleadings which contest parole denials involve challenges to the
execution of a sentence under 28 U.S.C. § 2241, rather than the validity of a
sentence under 28 U.S.C. § 2254. See George v. Perrill, 62 F.3d 333, 334 (10th
Cir. 1995); cf. Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000). It is
-4- important to note our clarification of this matter does not change the outcome of
our prior decisions nor our decision in this case. We make this determination
even though we recognize our review of a second or successive § 2241 petition is
controlled by different criteria than for a second or successive § 2254 petition.
Specifically, we have held 28 U.S.C. § 2244(a) is the statute that limits the
filing of second or successive § 2241 petitions for federal prisoners. See George,
62 F.3d at 334 (applying the pre-Antiterrorism and Effective Death Penalty Act
version of § 2244(a)); see also Valona v. United States, 138 F.3d 693, 695 (7th
Cir. 1998) (reaching same conclusion applying the post-Antiterrorism and
Effective Death Penalty Act version of § 2244(a)); Triestman v. United States,
124 F.3d 361, 373 n.17 (2d Cir. 1997) (same). Under § 2244(a), we are not
required to entertain a § 2241 petition if the legality of the detention has been
determined on a prior application. See 28 U.S.C. § 2244(a). 3
3 Section 2244(a) states:
No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255.
28 U.S.C. § 2244(a).
-5- In turn, 28 U.S.C. § 2244(b) is the statute which limits the filing of second
or successive § 2254 petitions. Under § 2244(b)(2)(A), (B), a § 2254 petitioner
filing a second or successive application for habeas relief
must make a prima facie showing that the grounds set forth are based on either [1] a new rule of constitutional law made retroactive on collateral review by the United States Supreme Court that was previously unavailable or [2] newly discovered evidence, the factual basis for which could not have been discovered previously through the exercise of due diligence, and which would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the movant guilty of the underlying offense.
Tapia v. Lemaster, 172 F.3d 1193, 1196 (10th Cir.) (citing 28 U.S.C.
§ 2244(b)(2)), cert. denied, 120 S. Ct. 192 (1999).
While we have not determined which criteria are applied for successive
§ 2241 petitions filed by “state” petitioners, we note one circuit has applied
§ 2244(b), 4 while another has applied § 2246(a). 5 Applying either criterium, it is
clear Mr. Shabazz’s identical parole claims must fail as successive, regardless of
whether we construe his past and present pleadings as § 2241 or § 2254 filings.
4 See Greenawalt v. Stewart, 105 F.3d 1287 (9th Cir.), cert. denied, 519 U.S. 1103 (1997); see also Vargas v. Sikes, 42 F. Supp.2d 1380, 1381 (N.D. Ga. 1999); Byrd v. Gillis, 1997 WL 698157 (E.D. Pa. Nov. 5, 1997) (unpublished opinion).
5 See, e.g., In re Slatton, 165 F.3d 28, 1998 WL 661148, *2-4 (6th Cir. 1998) (unpublished opinion) (declining to apply § 2244(b) to state prisoner’s successive § 2241 petition).
-6- First, if we construe these pleadings under § 2241, we conclude Mr. Shabazz’s
parole claims have already been rejected as successive by this court so that his
instant petition is also successive under the criteria for either § 2244(a) or
§ 2244(b). Second, if we construe his past pleadings and instant petition as filed
under § 2254, Mr. Shabazz has again not demonstrated either reliance on a new
rule of constitutional law or on facts that were previously undiscoverable and
sufficient to establish by clear and convincing evidence he would not have been
found guilty of the offense, as required under § 2244(b)(2)(A), (B). For these
reasons, we agree with the district court that Mr. Shabazz’s petition constitutes a
second or successive petition.
Finally, given the fact Mr. Shabazz is raising identical issues previously
addressed by this court, we hold his petition is clearly frivolous. 6 Accordingly,
we AFFIRM the district court’s order denying Mr. Shabazz’s habeas petition as
successive, deny his request for a certificate of appealability, and deny Mr.
6 Given Mr. Shabazz’s propensity to file repetitive and frivolous habeas pleadings and our interests in judicial economy, we warn Mr. Shabazz this Court will summarily dismiss any future second or successive habeas applications or appeals.
-7- Shabazz’s motion to proceed in forma pauperis.
Entered by the Court:
WADE BRORBY United States Circuit Judge
-8-