                                                                         F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       December 26, 2006
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court

 DOUGLAS W . THOM PSON,
               Petitioner-Appellant,                     No. 06-3237
          v.                                      (D.C. No. 05-CV-3358-RDR)
 DUKE TERR ELL, W arden, USP-                             (D . Kan.)
 Leavenworth; and D A N A D.
 THOM PSO N, Acting Chairman,
 M issouri Board of Probation and
 Parole,
               Respondents-Appellees.



                                       OR DER *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      After examining Petitioner’s brief and the record on appeal, 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 therefore ordered submitted without oral argument.

      Petitioner filed this 28 U.S.C. § 2241 petition in September 2005, seeking

relief from a detainer lodged against him by the State of M issouri. At the time



      *
        This order is not binding precedent except under the doctrines of law of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 (eff. Dec. 1, 2006) and 10th
Cir. R. 32.1 (eff. Jan. 1, 2007).
the petition was filed, Petitioner was serving a twenty-year federal sentence at the

United States Penitentiary in Leavenworth, Kansas. Before the district court had

made a ruling, however, Petitioner’s federal prison term expired, and he was

transferred to M issouri custody.

      Petitioner first challenged the M issouri detainer in 1988. In his 1988

habeas petition, he argued that he w as entitled to complete release from M issouri

custody because the State had acted vindictively in imprisoning him and in failing

to conduct a timely parole revocation hearing; that M o. Ann. Stat. §

558.011.4(1)(c) should have been applied to mandate his release after five years

of parole; and that he deserved parole credit for the two years he served in prison

due to the State’s unlawful refusal to grant parole. See Thompson v. M o. Bd. of

Parole, 929 F.2d 396, 399-401 (8th Cir. 1991). The Eighth Circuit reversed the

district court’s denial of habeas relief, holding that Petitioner deserved parole

credit for the two years he was unlawfully incarcerated. Id. at 401. After

crediting the two years of prison time toward his parole, the circuit court found

that Petitioner had served five years on parole and, consequently, was eligible for

parole discharge consideration. Id. at 401-02. The circuit court specifically

noted, however, that its order did not entitle Petitioner to discharge from parole

but only required the M issouri parole board to consider him for parole discharge.

Id. at 401 n.12. The court held that Petitioner’s other claims, which asserted

various reasons w hy he was entitled to complete release, lacked merit.

                                          -2-
      In the instant petition, Petitioner again argues that he is entitled to parole

discharge based either on the M issouri statute or on the vindictive and unlawful

actions of M issouri officials in imprisoning him and unlaw fully denying him

parole discharge. The district court denied the petition as an abuse of the writ. 1

      Petitioner must obtain a certificate of appealability in order to challenge the

district court’s denial of his habeas petition. See Montez v. M cKinna, 208 F.3d

862, 867 n.6 (10th Cir. 2000). Because the district court denied his habeas

petition on procedural grounds, a certificate of appealability will issue only if he

can show that jurists of reason would find it debatable both “whether the petition

states a valid claim of the denial of a constitutional right” and “whether the

district court was correct in its procedural ruling.” Slack v. M cDaniel, 529 U.S.

473, 484 (2000). W e are allowed and encouraged to resolve the procedural issues

before addressing the constitutional questions. See id. at 485.



      1
        The district court did not consider Petitioner’s allegation, raised in his
traverse, that the M issouri parole board refused to hold a parole discharge hearing
as ordered by the Eighth Circuit. Petitioner now informs us that M issouri
conducted a parole hearing in September 2006, which makes this allegation moot.
See Shakur v. Wiley, 156 Fed. App’x 137 (11th Cir. 2005) (unpublished)
(agreeing with the district court’s conclusion that “any claim that [the petitioner]
did not receive [a parole eligibility] hearing is moot, as he received a parole
consideration hearing in 2002”). As to Petitioner’s assertion that the September
2006 parole hearing was conducted unlawfully and/or improperly, we do not
consider this allegation, which w as raised for the first time in Petitioner’s
supplemental briefs. This claim is not properly before us because— due to the
fact that the hearing had not yet occurred at the time of the district court’s
ruling— it w as not raised below. See W alker v. M ather (In re Walker), 959 F.2d
894, 896 (10th Cir. 1992).

                                          -3-
      As an initial matter, we note that Petitioner’s claims against W arden Duke

Terrell are now moot. The only relief Petitioner could have obtained from

W arden Terrell was an injunction to prevent him from releasing Petitioner into

M issouri's custody. Now that this event has occurred, there is no effectual relief

he could obtain from W arden Terrell. See Church of Scientology of Cal. v. United

States, 506 U.S. 9, 12 (1992); Fredette v. Hemingway, 65 Fed. App’x 929, 931

(6th Cir. 2003) (unpublished) (prisoner’s petition for injunctive relief, seeking

prevention of his transfer from federal to state custody under a state detainer, was

moot due to the fact that he had already been transferred, rendering the court

unable to grant the relief requested). Because there is no reasonable expectation

that Petitioner will be subjected to this same action again, this is not the type of

claim to which an exception to the mootness doctrine applies. See Murphy v.

Hunt, 455 U.S. 478, 482 (1982); Fredette, 65 Fed. App’x at 931.

      As to Petitioner’s claims that he is entitled to parole discharge based on the

state statute and/or on the prior vindictive actions of M issouri state officials,

these claims have been considered on the merits and resolved against Petitioner

by other federal courts, including the Eighth Circuit. W e note that the Eighth

Circuit did not hold that Petitioner was entitled to parole discharge, but only that

he was entitled to parole discharge consideration; this process was met. A habeas

court generally will not reach the merits of a successive claim, which raises

grounds identical to grounds raised and decided on the merits in a previous

                                           -4-
petition. Sanders v. United States, 373 U.S. 1, 15 (1963). W e agree with the

district court that nothing in the record supports a finding of cause and prejudice

or a fundamental miscarriage of justice, and thus that there is no reason the

district court should not have dismissed the claims as an abuse of the writ. See

George v. Perrill, 62 F.3d 333, 335 (10th Cir. 1995).

      After reviewing Petitioner’s filings and the record on appeal, we conclude

that no reasonable jurist would find that Petitioner’s claims should not have been

dismissed on procedural grounds. Therefore, we DENY Petitioner’s request for a

certificate of appealability and DISM ISS the appeal. Petitioner’s motion to

expedite is DISM ISSED as moot.



                                               Entered for the Court



                                               M onroe G. M cKay
                                               Circuit Judge




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