                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                     January 30, 2007
                             FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                        Clerk of Court
    TO N Y T. H EC KA RD ,

                Petitioner-A ppellant,

    v.                                                   No. 03-2087
                                               (D.C. No. CIV-02-299-M V/AC T)
    LAW RENCE TAFOYA, W arden,                            (D . N.M .)
    Southern New M exico Correctional
    Facility; A TTO RN EY G EN ER AL
    FO R TH E STA TE O F N EW M EXICO,

                Respondents-Appellees.



            OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before T YM KOV IC H, A ND ER SO N, and BALDOCK , Circuit Judges.


         Petitioner Tony T. Heckard, a New M exico state prisoner, seeks a

certificate of appealability (“COA”) in order to appeal from the district court’s

denial of his 28 U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c). W e

deny M r. Heckard’s application for a COA and dismiss the appeal.




*
       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
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
                                           I.

      In 1998, M r. Heckard was convicted by a New M exico jury of two counts

of trafficking cocaine in violation of N. M . Stat. § 30-31-20, and one count of

aggravated battery on a peace officer in violation of N. M . Stat. § 30-22-25. H e

was sentenced to twenty years’ imprisonment. On direct appeal, M r. Heckard’s

aggravated battery conviction was reversed, but his drug trafficking convictions

were affirmed. State v. Heckard, No. 19,909 (N.M . Ct. App. July 11, 2000)

(unpublished). The New M exico Supreme Court denied his petition for writ of

certiorari on September 11, 2000. He also filed a state petition for habeas relief,

which was denied.

      M r. Heckard then filed a timely § 2254 petition challenging the

constitutionality of his conviction. He raised three claims: (1) he was denied due

process when the trial court would not permit a particular question to be asked on

voir dire examination of a juror, Joe Harvey, a former police officer; (2) his trial

and appellate counsel were constitutionally ineffective for failing to preserve and

raise this voir dire issue; and (3) his trial counsel was constitutionally ineffective

for failing to use a preemptory challenge to excuse M r. Harvey. At trial, during

voir dire before the jury, the judge refused to allow defense counsel to ask

M r. Harvey if he had ever known police officers to lie. Defense counsel

withdrew the question and did not challenge the court’s ruling. The trial court




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offered counsel an additional opportunity to voir dire M r. Harvey in chambers,

but counsel did not ask any questions.

      M r. Heckard raised Claim One on direct appeal. The New M exico Court of

Appeals ruled his counsel had waived the issue by failing to object and, in any

event, the trial court had not abused its discretion because M r. Harvey testified he

would evaluate the credibility of police witnesses without bias. The New M exico

Supreme Court denied his petition for writ of certiorari. M r. Heckard did not

raise Claim Two on direct appeal, but did raise it in his state habeas petition. The

state district court summarily denied the habeas petition. M r. Heckard states that

his petition for writ of certiorari challenging this ruling was denied as untimely

filed; the record does not include either his petition or an order of denial.

M r. Heckard did not raise Claim Three in the state courts.

      The district court denied his § 2254 petition. As to Claim One, it ruled that

M r. Heckard had not established the trial court’s limitation on voir dire resulted

in a biased jury and, thus, he had not demonstrated any denial of due process. It

further ruled that he had procedurally defaulted Claim Two by failing to seek

timely certiorari review of the denial of his state habeas petition. Finally, it ruled

that M r. Heckard failed to exhaust Claim Three, but nonetheless addressed this

unexhausted claim on the merits. It ruled that counsel’s decision not to exercise a

preemptory challenge was a strategic decision, that M r. Heckard had alleged no

facts showing that M r. Harvey was biased or that he suffered prejudice from his

                                          -3-
counsel’s failure to remove this juror, and, therefore, he was not entitled to

habeas relief on that claim.

                                            II.

      Before addressing M r. Heckard’s request for COA, we first consider

whether the district court had jurisdiction over his § 2254 petition, a question that

turns on whether his § 2254 petition constitutes a “second or successive” habeas

petition under 28 U.S.C. § 2244(b). Prior to filing his § 2254 petition, petitioner

filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 in July 2000. In

it, he alleged that his transfer to and incarceration in a privately-run prison

facility violated his constitutional rights. The district court denied the § 2241

petition, and this court affirmed. See Heckard v. Williams, No. 00-2395

(10th Cir. Nov. 6, 2001) (holding that, under M ontez v. M cKinna, 208 F.3d 862

(10th Cir. 2000), a prisoner’s placement in a private prison does not state a

federal constitutional claim for relief).

      The Antiterrorism and Effective Death Penalty Act (AEDPA ) “[]amended

habeas corpus statutes [to] restrict the power of the federal courts to entertain

second or successive applications for writs of habeas corpus.” Spitznas v. Boone,

464 F.3d 1213, 1215 (10th Cir. 2006); see 28 U.S.C. § 2244(b). “Before a

petitioner may file a second or successive 28 U.S.C. § 2254 petition in the district

court, he must successfully apply to this court for an order authorizing the district




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court to consider the petition.” Spitznas, 464 F.3d at 1215; see 28 U.S.C.

§ 2244(b)(3). Section 2244(b) provides, in relevant part:

            (1) A claim presented in a second or successive habeas corpus
      application under section 2254 that was presented in a prior
      application shall be dismissed.

            (2) A claim presented in a second or successive habeas corpus
      application . . . that was not presented in a prior application shall be
      dismissed unless --

             (A) the applicant shows that the claim relies on a new rule of
      constitutional law, made retroactive to cases on collateral review by
      the Supreme Court, that was previously unavailable; or

              (B)(I) the factual predicate for the claim could not have been
      discovered previously through the exercise of due diligence; and
      (ii) the facts underlying the claim, if proven and viewed in light of
      the evidence as a whole, would be sufficient to establish by clear and
      convincing evidence that, but for constitutional error, no reasonable
      factfinder would have found the applicant guilty of the underlying
      offense.

             (3)(A) Before a second or successive application permitted by
      this section is filed in the district court, the applicant shall move in
      the appropriate court of appeals for an order authorizing the district
      court to consider the application.

28 U.S.C. § 2244(b).

      If M r. Heckard’s § 2254 habeas petition constitutes a second or successive

petition within the meaning of § 2244(b) because of his prior § 2241 petition, the

district court lacked jurisdiction even to deny it because M r. Heckard did not seek

or obtain appellate-court authorization under § 2244(b). See Berryhill v. Evans,

466 F.3d 934, 937 (10th Cir. 2006); Spitznas, 464 F.3d at 1215.



                                         -5-
      This court has not yet determined whether a § 2254 petition constitutes a

“second or successive” habeas petition within the meaning of § 2244(b) if the

petitioner previously filed a habeas petition under § 2241. W e appointed counsel

for M r. Heckard and requested that the parties file supplemental briefs addressing

this jurisdictional question. Both parties filed briefs stating their position that

M r. Heckard’s § 2254 petition is not a “second or successive” petition because it

is his first collateral challenge to his state conviction, whereas his prior § 2241

habeas petition challenged the execution of his sentence. W e agree that

M r. Heckard’s § 2254 petition is not a second or successive petition.

      Section 2244 does not define what constitutes a “second or successive”

petition. See Reeves v. Little, 120 F.3d 1136, 1138 (10th Cir. 1997).

Nonetheless, “[c]ourts have uniformly rejected a literal reading of Section 2244,

concluding that a numerically second petition does not necessarily constitute a

‘second’ petition for the purposes of AEDPA .” Jam es v. Walsh, 308 F.3d 162,

167 (2d Cir. 2002); see also Crouch v. Norris, 251 F.3d 720, 723-24 (8th Cir.

2001) (collecting cases).   The Supreme Court, this court, and other circuit courts

have applied pre-AEDPA “abuse-of-the-writ” standards and principles in

determining whether a habeas petition is second or successive. See Slack v.

M cDaniel, 529 U.S. 473, 486 (2000) (stating that “[t]he phrase ‘second or

successive petition’ is a term of art given substance in our prior habeas corpus

cases”); Stewart v. M artinez-Villareal, 523 U.S. 637, 643-45 (1998) (looking to

                                          -6-
pre-A EDPA law to interpret § 2244(b)); Haro-Arteaga v. United States, 199 F.3d

1195, 1196 (10th Cir. 1999) (per curiam) (collecting cases from Tenth Circuit);

Benchoff v. Colleran, 404 F.3d 812, 817 (3d Cir. 2005) (collecting circuit cases).

      In applying “abuse-of-the-writ” principles, the courts have held that the

second-or-successive gatekeeping requirements of § 2244(b) do not apply when a

petitioner files a second habeas petition to litigate a claim that could not have

been raised in his earlier petition or was not properly the subject of adjudication

in an earlier habeas petition. Singleton v. Norris, 319 F.3d 1018, 1023 (8th Cir.

2003) (holding that § 2244(b) does not bar a claim that had not arisen when

petitioner filed his first habeas petition); Crouch, 251 F.3d at 724 (holding that

petitioner’s second § 2254 petition was not subject to § 2244(b) because he could

not have raised his parole-related claims in his first habeas petition challenging

his conviction); In re Cain, 137 F.3d 234, 236-37 (5th Cir. 1998) (holding that

claim that had not arisen at the time of the previous petition is not barred by

§ 2244(b)); Cf. M artinez-Villareal, 523 U.S. at 643-45 (holding that 2244(b) did

not bar petitioner’s request to reconsider habeas claim dismissed by district court

as necessarily unripe). “[T]he purpose of AEDPA ’s habeas restrictions . . . was

‘primarily to preclude prisoners from repeatedly attacking the validity of their

convictions and sentences.’” Crouch, 251 F.3d at 724 (quoting Cain, 137 F.3d at

235). The Supreme Court has noted that a rigid construction of AEDPA by which

a habeas petitioner would be entitled to file only one petition and thereafter all

                                          -7-
claims would be subject to AEDPA ’s gatekeeping provisions even if he could not

have received an adjudication of that claim in the initial petition would have “far

reaching and seemingly perverse” implications. M artinez-Villareal, 523 U.S. at

644.

       Under this circuit’s precedent, M r. Heckard’s first habeas petition sought

relief available only under § 2241. W e have held that “[p]etitions under § 2241

are used to attack the execution of a sentence, in contrast to § 2254 habeas and

§ 2255 proceedings, which are used to collaterally attack the validity of a

conviction and sentence.” M cIntosh v. United States Parole Comm’n, 115 F.3d

809, 811 (10th Cir. 1997). Applying that distinction, we have held that a § 2241

petition is the proper procedural means for a state prisoner to challenge the

constitutionality of his placement in a private prison. See Rael v. Williams, 223

F.3d 1153, 1154 (10th Cir. 2000); M ontez, 208 F.3d at 865 (finding that an attack

on where one’s sentence will be served “seems to fit better under the rubric of

§ 2241”). 1 In contrast, § 2254 serves as means for state prisoners to challenge the



1
       W e note that ours is the only circuit to hold that § 2241 is the proper
habeas statute for a state prisoner to use to challenge his transfer to a private
prison. See W hite v. Lam bert, 370 F.3d 1002, 1008-09 (9th Cir. 2004) (noting
that Tenth Circuit is only circuit to permit use of § 2241 by state prisoners
challenging the execution of their sentence and collecting contrary cases from
other circuits); see also Aquiar v. Tafoya, 95 F. App’x 931, 936 n.1 (10th Cir.
2004) (Briscoe, J., dissenting) (noting that Tenth Circuit is only circuit holding,
in M ontez, 208 F.3d at 865, that a challenge by a state prisoner to the execution of
his sentence must be construed under § 2241, instead of § 2254; collecting cases).


                                         -8-
constitutionality of their conviction or sentence. See M ontez, 208 F.3d at 865.

Thus, M r. Heckard could only raise his claims challenging his state conviction in

a § 2254 petition, and could not have included them in his § 2241 petition.

Because his first habeas petition sought relief available only under § 2241, his

subsequent petition under § 2254 challenging his conviction is not a second or

successive petition. See Jacobs v. M cCaughtry, 251 F.3d 596, 597 (7th Cir. 2001)

(per curiam) (holding § 2254 petition was not a second or successive petition

where previous petition was properly characterized as a § 2241 petition);

Chambers v. United States, 106 F.3d 472, 474 (2d Cir. 1997) (holding that where

a § 2255 motion follows a § 2241 petition, it is not a second or successive

petition if the prior petition sought relief available only under § 2241); see also

Crouch, 231 F.3d at 725 (holding that second petition challenging parole decision

not a second or successive petition under § 2244(b) because the parole claim was

not challenging petitioner’s conviction or sentence and could not have been raised

in his earlier petition).

       Accordingly, because this § 2254 petition is not a second or successive

petition, we conclude that the district court had jurisdiction to rule on its merits.

                                          III.

       A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing that reasonable jurists could

                                          -9-
debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473,

484 (2000) (quotation marks omitted). In other words, the applicant must show

that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id. If the application was denied on procedural grounds,

the applicant must make a substantial showing of the denial of a constitutional

right, and must also show “that jurists of reason would find it debatable . . .

whether the district court was correct in its procedural ruling.” Id. “W here a

plain procedural bar is present and the district court is correct to invoke it to

dispose of the case, a reasonable jurist could not conclude either that the district

court erred in dismissing the petition or that the petitioner should be allowed to

proceed further.” Id.

      M r. Heckard argues that the district court erred in concluding that his

second ineffective assistance of counsel claim was procedurally barred and his

third ineffective assistance claim was unexhausted. He asserts that he did raise a

claim of ineffective assistance of counsel in the state court relating to his

counsel’s deficiencies in preventing M r. Harvey from sitting on the jury, and he

simply argued different facts in support of this claim at the different stages of

state appellate review. His argument is without merit. “A claim has been

exhausted when it has been ‘fairly presented’ to the state court.” Bland v.

                                          -10-
Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006) (quoting Picard v. Connor, 404

U.S. 270, 275 (1971)). “Fair presentation means that the petitioner has raised the

substance of the federal claim in state court.” Id. (quotations omitted). “[T]he

doctrine of exhaustion requires that a claim be presented to the state courts under

the same theory in which it is later presented in federal court.” Wong v. M oney,

142 F.3d 313, 322 (6th Cir. 1998). Habeas petitioners fail to exhaust state

remedies where the basis of their state-court ineffective-assistance claim differs

from that of their federal ineffective-assistance claim. Thom as v. Gibson,

218 F.3d 1213, 1221 n.6 (10th Cir. 2000); Smallwood v. Gibson, 191 F.3d 1257,

1267 (10th Cir. 1999).

      Our review of the record, including M r. Heckard’s appellate brief and

application for a COA, demonstrates that the district court’s dismissal of his

§ 2254 petition is not deserving of further proceedings or subject to a different

resolution on appeal. Accordingly, we D ENY M r. Heckard’s application for a

COA, and DISM ISS this appeal.



                                                    Entered for the Court


                                                    Timothy M . Tymkovich
                                                    Circuit Judge




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