                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 4 2004
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk


WILFRED D. MARQUES,

          Petitioner-Appellant,

v.
                                                         No. 03-1533
WARDEN ABBIOT, C.T.C.F.;                             (District of Colorado)
PEOPLE OF THE STATE OF                               (D.C. No. 03-Z-2048)
COLORADO; ATTORNEY
GENERAL OF THE STATE OF
COLORADO,

          Respondents-Appellees.




                             ORDER AND JUDGMENT *


Before EBEL, MURPHY, and McCONNELL, 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

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       This order and judgment is not binding precedent, except under the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. 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.
      This matter is before the court on Wilfred D. Marques’ requests for a

certificate of appealability (“COA”) and to proceed on appeal in forma pauperis.

Marques seeks a COA so that he can appeal the district court’s dismissal without

prejudice of his 28 U.S.C. § 2241 habeas corpus petition. 1 See 28 U.S.C. §

2253(c)(1)(A) (providing that no appeal may be taken from a “final order in a

habeas corpus proceeding in which the detention complained of arises out of

process issued by a State court,” unless the petitioner first obtains a COA).

Marques’ request to proceed before this court in forma pauperis is granted.

Furthermore, because this court concludes that this case is in need of further

proceedings, Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), we issue a COA in

this case. Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, this

court reverses the district court’s dismissal of Marques’ § 2241 petition without

prejudice and remands the matter to the district court to dismiss the petition with

prejudice.

      The district court dismissed Marques’ § 2241 petition without prejudice on

the ground that Marques had not exhausted his state court remedies. In seeking


      1
        Although Marques styled his habeas petition as a § 2254 petition, the
district court correctly concluded that the petition was actually a § 2241 petition
because it challenged the execution of Marques’ sentence. See Montez v.
McKinna, 208 F.3d 862, 865 (10th Cir. 2000) (distinguishing between § 2241 and
§ 2254 petitions); see also Marques v. Burnett, 62 Fed. App. 247, 248 n.1 (10th
Cir. 2003) (construing earlier petition raising virtually identical claims as a
§ 2241 petition).

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reversal of this dismissal on appeal, Marques appended to his appellate brief

documents filed in state court proceedings. Not only do those documents make

clear that Marques has, in fact, exhausted this claim in state court, 2 they also led

this court to discover that the instant § 2241 is identical to a previous § 2241

petition filed by Marques. In Marques v. Burnett, 62 Fed. App. 247, 248 (10th

Cir. 2003), this court noted that Marques was challenging a method of calculating

sentencing credits that Colorado officials adopted in 1990. The district court had

denied Marques’ petition, construed as arising under § 2241, on the ground that it

was untimely pursuant to 28 U.S.C. § 2244(d)(1). Id. This court denied Marques

a COA, concluding the district court was correct in determining that Marques’ §

2241 petition was untimely. Id. at 248-49. Our review of the record and

Marques’ appellate filings in this case reveals that the issue Marques seeks to

raise is identical to the issue disposed of in Marques v. Burnett.

      In light of the successive/abusive nature of the instant § 2241 petition, this

court REVERSES the district court’s dismissal of Marques’ petition without

prejudice and REMANDS the matter to the district court to dismiss the petition


      2
        Marques attached to his appellate brief the first page of a brief filed by the
Colorado Attorney General’s Office in Colorado district court. Marques asserts
that the state case involved the exact same claims at issue in the instant appeal.
The Attorney General’s brief asserts that Marques has “repeatedly been denied
relief when asserting these same claims in both federal and state court.” It further
indicates that these exact same claims have been raised and rejected in federal
court. As set out below, that assertion is correct.

                                          -3-
with prejudice. See generally McCleskey v. Zant, 499 U.S. 467 (1991)

(discussing generally abuse of the writ). On remand, the district court should

consider whether filing restrictions are appropriate in light of Marques’ history of

filing identical § 2241 petitions in rapid succession.

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




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