                                                                             F IL E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                       U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                            January 26, 2007
                                       T E N T H C IR C U IT
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

 RA NDALL B IAS ,

           Petitioner - A ppellant ,
                                                                No. 06-6272
 v.                                                       (D.C. No. CIV-06-248-R )
                                                                ( W .D. Okla.)
 U N ITED STA TES O F A M ER ICA ;
 JOSEPH SCIBANA, W arden,

           Respondents - Appellees .



                                O R D E R A N D JU D G M E N T *


Before K E L L Y , M cK A Y , and L U C E R O , Circuit Judges. * *


       Petitioner-Appellant Randall L. Bias, a federal inmate appearing pro se,

seeks to appeal the district court’s order dismissing his 28 U.S.C. § 2241 petition.

See Bias v. United States, No. CIV-06-248-R, 2006 W L 1888884 (W .D. Okla.

July 7, 2006). The district court dismissed four of the five claims contained in



       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
the petition without prejudice for lack of jurisdiction (because they were actually

§ 2255 claims). The court dismissed the final claim, concerning the execution of

M r. Bias’s sentence, with prejudice. It is from that dismissal that M r. Bias

appeals. W e deny M r. Bias’s motion to proceed in forma pauperis (IFP) and

dismiss the appeal.




                                      Background

      On December 2, 1998, after the government had rested its case during a

jury trial, M r. Bias pled guilty to conspiracy to possess with intent to distribute

methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1) and possession

with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1).

As part of the plea agreement, the government agreed to recommend that M r. Bias

receive credit towards his federal sentence for the time he was incarcerated from

his arrest to his sentencing. M r. Bias was subsequently sentenced to a term of

168 months on each count, to be served concurrently. On appeal, we affirmed

M r. Bias’s sentence. See United States v. Bias, 201 F.3d 449 (Table), 1999 W L

1083749 (10th Cir. 1999).

      The district court was subsequently notified by the Bureau of Prisons

(BOP) on November 28, 2000, that it would be unable to grant M r. Bias credit

towards his federal sentence for his pre-sentence incarceration because that time



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had been credited towards a separate California state sentence. See 18 U.S.C.

§ 3585(b). After administrative review, M r. Bias filed a 28 U.S.C. § 2255 motion

alleging that the government violated his plea agreement based on the B OP’s

failure to provide him with credit as recommended by the government and the

district court. The district court denied M r. Bias’s § 2255 motion because it was

untimely, but it also noted that the motion was without merit because the

government had recommended that M r. Bias receive credit and the plea agreement

specifically stated that the government’s recommendations were not binding. See

United States v. Bias, No. 02-3291, 2003 W L 22003091 (D . Kan. June 2, 2003).

M r. Bias did not appeal. M r. Bias filed the instant § 2241 petition on M ay 18,

2006.




                                      Discussion

        On appeal, M r. Bias challenges the district court’s determination that his

claim is successive and that he cannot make a claim of factual innocence because

he pled guilty. 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.” G eorge v. Perrill,

62 F.3d 333, 334 (10th Cir. 1995). The district court dismissed M r. Bias’s claim

with prejudice because the same claim was previously adjudicated and rejected by



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the sentencing court in the earlier § 2255 petition. To the extent that the district

court determined that M r. Bias failed to show cause and prejudice or a

fundamental miscarriage of justice, it was undoubtedly correct. See George, 62

F.3d at 335.

      In order to proceed IFP, M r. Bias is required to demonstrate not only a

financial inability to pay the required fees, but also “a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal.”

M cIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (internal

quotation marks omitted). This he has failed to do. The appeal is frivolous and

wholly without merit. W e therefore DENY his motion to proceed IFP and

DISM ISS the appeal. See 28 U.S.C. § 1915(e)(2)(B)(i).


                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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