                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-8-2006

Queen v. Fed Bur Prisons
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5474




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Queen v. Fed Bur Prisons" (2006). 2006 Decisions. Paper 1145.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1145


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
HPS-59 (April 2006)                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-5474
                                   ________________

                                 NICHOLAS J. QUEEN,
                                              Appellant
                                        vs.

                         FEDERAL BUREAU OF PRISONS
                      ____________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                               (D.C. Civ. No. 05-cv-02504)
                     District Judge: Honorable Richard P. Conaboy
                    _______________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  April 21, 2006
          Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges
                               (Filed: May 8, 2006)

                              _______________________

                                      OPINION
                              _______________________

PER CURIAM.

             Nicholas J. Queen, a federal prisoner, appeals the order of the United States

District Court for the Middle District of Pennsylvania dismissing the habeas petition he

brought pursuant to 21 U.S.C. § 2241 as a successive petition.

             From 1998 to 2003, Queen filed two § 2241 petitions and a Rule 60(b)

motion, all of which contended that he was being illegally held in federal custody
resulting in part from the federal government’s administrative error in failing to return

him immediately to the custody of the state of Maryland after he was tried and convicted

of federal charges in 1994. We affirmed the District Court’s denial of the § 2241

petitions and the Rule 60(b) motion. See Queen v. Romine, C.A. No. 00-2786 (3d Cir.

Oct. 5, 2001) (1998 § 2241 petition); Queen v. Romine, C.A. No. 02-2872 (3d Cir. Nov.

19, 2002) (Rule 60(b) motion); Queen v. Dodrill, C.A. No. 04-1212 (3d Cir. Sept. 8,

2004) (successive § 2241 petition).

              The instant § 2241 petition was transferred to the Middle District of

Pennsylvania from the United States District Court for the District of Columbia. Yet

again, Queen seeks to be released from allegedly unlawful restraint on essentially the

same grounds that he has articulated in prior unsuccessful § 2241 petitions. He claims

that federal prison officials violated his constitutional rights when they “re-imprisoned”

him in April 1995. He also contends that in 2003, prison officials wrongfully rejected as

untimely an administrative grievance complaining about an aspect of his alleged illegal

transfer to federal custody. The District Court summarily dismissed the § 2241 petition

and declined to issue a certificate of appealability, holding that the habeas petition was

successive because it presented claims that were raised or could have been raised in

previous § 2241 petitions.1 Queen timely appealed.

              We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and we review



              1
                We disagree with the District Court’s ruling that, under the AEDPA,
Queen was required to seek prior authorization from this Court before filing a successive
§ 2241 petition. See Zayas v. INS, 311 F.3d 247, 252 (3d Cir. 2002).
de novo the District Court’s denial of the § 2241 petition as successive. Zayas v. INS,

311 F.3d 247, 252 (3d Cir. 2002). The Appellee has filed a motion for summary

affirmance and Queen has filed a Response in opposition to summary action. The matter

is ready for disposition. For essentially the same reasons set forth by the District Court in

its Order entered December 12, 2005, we will summarily affirm. We discern no

difference between the claims raised in Queen’s current § 2241 petition and those raised

in prior habeas petitions. But even if the claims in Queen’s § 2241 petition could be

construed as “new,” they are based on a factual predicate long known to Queen and thus

they could have been raised in earlier habeas petitions. Because the successive habeas

petition constitutes an abuse of the writ, see Zayas, 311 F.3d at 255-56, the District Court

correctly dismissed the habeas petition.

              Because no substantial question is presented by this appeal, we will affirm

the District Court’s judgment. See Third Circuit LAR 27.4 and I.O.P. 10.6. Appellee’s

motion for summary affirmance is granted and the Appellant’s motion for summary

opposition is denied.
