                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0920n.06
                           Filed: December 20, 2006

                                             No. 05-6340

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


In re: ROBERT DAVID MARSCH,                                )
                                                           )          ON APPEAL FROM THE
        Movant.                                            )          UNITED STATES DISTRICT
                                                           )          COURT FOR THE WESTERN
                                                           )          DISTRICT OF KENTUCKY
                                                           )
                                                           )                  OPINION
                                                           )
                                                           )


BEFORE: NORRIS, COLE, and COOK, Circuit Judges.

        ALAN E. NORRIS, Circuit Judge. Petitioner Robert Marsch, a Kentucky state prisoner

proceeding pro se, filed a petition in the district court seeking a writ of habeas corpus pursuant to 28

U.S.C. § 2241, alleging that the state parole board violated his due process and equal protection

rights guaranteed by the Fourteenth Amendment when it ordered him to serve out the remainder of

his life sentence. As petitioner had sought habeas corpus relief four years earlier pursuant to 28

U.S.C. § 2254, the district court treated this petition as a second or successive petition and, because

a district court may not hear a successive § 2254 petition without receiving authorization from an

appellate court, the petition was transferred to this court for authorization. See 28 U.S.C. § 2244(b).

For the reasons outlined below, we affirm the district court’s decision to transfer the petition to this

court and deny petitioner’s request to bring a successive petition.
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In re: Robert David Marsch

                                                           I.

       A jury convicted petitioner of intentional murder and second-degree arson in Kentucky state

court. He was sentenced to consecutive terms of life in prison on the murder charge and twenty-

years for the arson charge. On August 3, 1989, the Supreme Court of Kentucky affirmed his

convictions and sentence. Then, in a subsequent post-conviction proceeding under Ky. R. Crim. P.

11.42, the Kentucky Court of Appeals affirmed his conviction but vacated his sentence and

remanded his case with directions to amend the judgment to provide for concurrent sentences. In

April 1999, the Supreme Court of Kentucky denied discretionary review.

       Petitioner first sought habeas corpus relief pursuant to 28 U.S.C. § 22541 in the United States

District Court for the Western District of Kentucky. In that petition, he challenged his underlying

convictions. In November 2000, his request for relief was denied. The district court’s judgment was

affirmed by this court. Marsch v. Seabold, 27 Fed. Appx. 445 (6th Cir. 2001).

       While petitioner was seeking post-conviction relief, the Kentucky Parole Board twice

considered him for parole: first on December 3, 1992 and then on November 29, 2000. Parole was

denied on both occasions. Petitioner did not challenge the Parole Board’s decisions or findings.

Then, on December 1, 2004, petitioner was considered for parole for a third time. The Parole Board



       1
           This provision provides in part as follows:

              The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an
              application for a writ of habeas corpus in behalf of a person in custody pursuant to the
              judgment of a State court only on the ground that he is in custody in violation of the
              Constitution or laws or treaties of the United States.

           28 U.S.C. § 2254(a).

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In re: Robert David Marsch

denied his request and ordered him to serve out his life sentence.

        Petitioner filed the current petition seeking habeas corpus relief in the district court pursuant

to 28 U.S.C. § 2241.2 Rather than attack his convictions for murder and arson, he now challenges

the Parole Board’s decision denying him parole, arguing that he was denied due process and equal

protection at his parole hearing. Specifically, he alleges that the Parole Board based its decision on

inaccurate statements regarding the crimes for which he was convicted.

                                                            II.

        As already stated, the district court construed the petition as a successive petition filed

pursuant to 28 U.S.C. § 2254. In order for the district court to hear a successive petition, it must be

authorized by the appropriate court of appeals. 28 U.S.C. § 2244(b)(3)(A). Accordingly, the district

court transferred the petition to us for authorization. Even though the petition was filed pursuant to

§ 2241, this court has recently held that a state prisoner’s § 2241 habeas petition must comply with

the gatekeeping restrictions included in the Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996). Rittenberry v. Morgan, ___ F.3d ___,

2006 WL 3230278, at *5 (6th Cir. Nov. 9, 2006). Among these gatekeeping restrictions are the

requirements that a prisoner must first obtain a certificate of appealability before appealing the denial

of writ, 28 U.S.C. § 2253(c)(1), and that he may not file a successive petition absent authorization


        2
            This provision states in part:

               W rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district
               courts and any circuit judge within their respective jurisdictions. The order of a circuit judge
               shall be entered in the records of the district court wherein the restraint complained of is had.

            28 U.S.C. § 2241(a).

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In re: Robert David Marsch

from an appellate court, 28 U.S.C. 2244(b). In order for an appellate court to issue an order

authorizing the district court to hear a successive application, a three-judge panel must find that the

petitioner has made a prima facie showing that he has satisfied the requirements of § 2244(b). 28

U.S.C. § 2244(b)(3).

        Because § 2244(b) applies to petitioner’s habeas request, we must now decide whether his

petition is successive and, if so, whether he can make a prima facie showing that his claims satisfy

the requirements of this provision. A petition is successive if “it raises a claim that could have been

raised in the first petition but was not so raised, either due to deliberate abandonment or inexcusable

neglect.” In re Bowan, 436 F.3d 699, 704 (6th Cir. 2006) (citing McClesky v. Zant, 499 U.S. 467,

489 (1991)); see In re Siggers, 132 F.3d 333, 338 (6th Cir. 1997) (prisoner’s claim was successive

because he could have discovered the factual predicate to the new claim at the time he filed his first

petition).

        Petitioner argues that his due process and equal protection rights were violated at his 2004

parole hearing because the Parole Board relied on an inaccurate recitation of the facts surrounding

the crimes for which he was convicted. Specifically, he asserts that a document read to the Parole

Board stated that blood stains and a loaded gun were found in petitioner’s car soon after the murder

and arson, when, in fact he did not have a car. He also argues that the Parole Board erroneously

believed that he had a prior felony conviction.

        Petitioner filed his first habeas corpus petition on April 10, 2000. By this time, the Parole

Board had already denied petitioner parole in 1992. There is no reason to believe, and petitioner

does not argue, that the Parole Board looked at different material regarding the nature of the

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In re: Robert David Marsch

underlying offense when it made its first decision to deny parole. Based on petitioner’s skeletal

allegations, this court is not persuaded that the Parole Board would have relied on different factual

allegations regarding petitioner’s underlying conviction some fourteen years later. Consequently,

he could have discovered the factual predicate by April 2000, when he filed his first petition. It

follows then, that the present petition is a successive petition.

       This court will allow a petitioner to bring a successive petition “only if” he can make a prima

facie showing that he can satisfy one of § 2244(b)’s subdivisions. 28 U.S.C. § 2244(b)(3)(C).

Section 2244(b) authorizes courts to hear successive petitions on two different grounds, neither of

which petitioner satisfies. A successive petition will be permitted when a previously unavailable rule

of constitutional law is made available to a petitioner by the Supreme Court. 28 U.S.C. §

2244(b)(2)(A). Alternatively, authorization may be granted if the petitioner can demonstrate that

the “factual predicate for the claim could not have been previously discovered through the exercise

of due diligence” and that, “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.”   28 U.S.C. § 2244(b)(2)(B)(i)-(ii).      Petitioner does not argue that a new rule of

constitutional law was made retroactive to his claim. And, as previously discussed, the factual

predicate to petitioner’s claim could have been discovered before he filed his first application for

habeas relief.

                                                 III.

       Petitioner’s request for authorization pursuant to § 2244(b) to bring a successive petition is

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denied.




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