                                                                             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          This order and judgment is not binding precedent except under the doctrines of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




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