                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      August 10, 2006
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court



 W ESLEY LA M ON T M AX W ELL,

       Petitioner-A ppellant,

 v.
                                                        No. 05-2060
                                                (D.C. No. CV 04-994 JH/AC T)
 JAM ES JANECKA, W arden, Lea
                                                       (New M exico)
 County Correctional Facility;
  and A TTO RN EY G EN ER AL FOR
 TH E STA TE O F N EW M EX IC O,

       Respondents-Appellees.




                                      OR DER


Before SE YM OU R, HA RTZ, and M cCO NNELL, Circuit Judges.


      W esley Lamont M axwell, a state prisoner proceeding pro se, seeks a

certificate of appealability (COA) to challenge the district court’s dismissal of his

petition for federal habeas relief pursuant to 28 U.S.C. § 2241. The district court

dismissed M r. M axwell’s petition in part on the ground that it was a second or

successive one, and thereafter denied his application for a COA. W e liberally

construe M r. M axwell’s pleadings and submissions to this court, Haines v.

Kerner, 404 U.S. 519, 520-21 (1972); Cummings v. Evans, 161 F.3d 610, 613

(10th Cir. 1998), and conclude that jurists of reason would not find debatable the
district court’s dismissal of M r. M axwell’s petition as successive. Slack v.

M cDaniel, 529 U.S. 473, 478 (2000). 1 W e therefore decline to grant a COA.

      M r. M axwell makes one claim in his instant habeas petition, that New

M exico state officials failed to calculate his good time credits correctly for an

eighteen year sentence he is currently serving. M r. M axwell was initially

sentenced in 1997 to eighteen years imprisonment in New M exico state court.

After successfully challenging his sentence, he was resentenced to the same

eighteen year term. The sentencing court suspended that sentence, however, and

placed M r. M axwell on a five year term of probation. M r. M axwell violated the

terms of his probation on at least two different occasions, resulting in the

revocation of his probation and his current state of incarceration. He now claims

that in the course of these criminal proceedings, the State of New M exico

miscalculated his previously earned good time credits and thereby violated his

double jeopardy rights. 2

      Prior to bringing the petition currently under review, M r. M axwell had filed

a federal habeas petition alleging claims similar or related to the one here. After



      1
        Because we deny M r. M axwell’s request for COA on the grounds that his
petition is successive, we need not address the other reasons given by the district
court for dismissing his petition.
      2
       Because M r. M axwell is challenging the manner in which his sentence is
being executed rather than the validity of his underlying conviction, the district
court properly construed his petition as arising under 28 U.S.C. § 2241 rather than
§ 2254. See Montez v. M cKinna, 208 F.3d 862 (10th Cir. 2000).

                                          -2-
determining M r. M axwell’s current petition raised claims he had presented

earlier, the court dismissed the petition as successive.

      Under 28 U.S.C. § 2244(a), “a section 2241 petition which presents no new

grounds for relief is subject to dismissal as a successive petition unless the ends

of justice require consideration of the merits.” George v. Perrill, 62 F.3d 333,

334 (10th Cir. 1995). M oreover, where a successive § 2241 petition raises a new

claim, a court may decline to hear the claim under the doctrine of abuse of the

writ w here the issue could have been raised previously. Id. “W hen a pro se

petitioner presents a new claim in a second or subsequent habeas petition, the

prisoner must show cause and prejudice . . . . Absent such a showing, a court

may not hear the claim unless a petitioner shows that the case implicates a

fundamental miscarriage of justice.” Id. at 335 (internal quotations omitted).

      The most liberal construction of M r. M axwell’s petition might allow for the

conclusion that the good time claim he raises in his second request for relief is

slightly different from that raised in his first. W e need not decide w hether M r.

M axwell’s claim is new or repeated, however, because his failure to make any

showing of cause and prejudice or a fundamental miscarriage of justice bars the

second action in either event. See id. (citing Schlup v. Delo, 513 U.S. 298, 317-

23 (1995)). W e thus do not find debatable the district court’s conclusion that M r.

M axwell’s petition warranted dismissal.




                                           -3-
Accordingly, we D EN Y COA and DISM ISS the appeal.

                            SUBM ITTED FOR THE COURT

                            Stephanie K. Seymour
                            Circuit Judge




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