                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        June 29, 2006
                                     TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                        Clerk of Court

 JAM ES EDWA RD VERNER,

          Petitioner - A ppellant,
                                                         No. 06-1063
 v.                                                  (D.C. No. 05-Z-2092)
                                                           (D . Colo.)
 ATTORNEY GENERAL; ROBERT
 W ILEY, W arden, United States
 Penitentiary - M ax, Florence,
 Colorado,

          Respondents - Appellees.



                              OR D ER AND JUDGM ENT *


Before KELLY, M C KA Y, and LUCERO, Circuit Judges. **


      Petitioner James Edw ard Verner, a federal inmate appearing pro se, seeks

to appeal from the district court’s denial of his habeas corpus petition filed

pursuant to 28 U.S.C. § 2241. M r. Verner claims that his consent to be

transferred from the Canadian prison system to the United States prison system

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
was ineffective. He argues the district court improperly dismissed his petition as

successive, by (1) usurping the government’s burden of pleading that this was a

successive petition by issuing an order to show cause rather than requiring the

government to respond, and (2) not considering the merits of his claims. The

district court denied M r. Verner IFP status on appeal based on the absence of a

reasoned, non-frivolous argument, concluding that the appeal was not taken in

good faith. 28 U.S.C. § 1915(a)(3).

      M r. Verner is a United States citizen serving three life sentences for murder

convictions in Canada. In 1990, M r. Verner requested a transfer from Canada to

the U nited States. The magistrate judge w ho handled M r. Verner’s request

repeatedly explained to M r. Verner that as a result of the transfer, he w ould lose

the possibility of parole on one of his convictions. M r. Verner consented. In

1996, the United States Parole Commission denied M r. Verner’s application for

parole, and this court affirmed. Verner v. U.S. Parole Comm’n, 150 F.3d 1172

(10th Cir. 1998).

      In 1997, M r. Verner filed a § 2241 petition challenging the underlying

sentences and his consent to be transferred. The district court dismissed the

petition and this court affirmed, finding that M r. Verner’s consent to be

transferred was given voluntarily. Verner v. Reno, No. 98-1119, 1998 W L

792059, at *3 (10th Cir. Nov. 3, 1998). In this petition, M r. Verner once again

argues that his consent to transfer was ineffective, and raises for the first time a

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claim of actual innocence in support of his claim that a fundamental miscarriage

of justice will occur if this court does not consider his case on the merits. The

district court dismissed the petition as successive. See 28 U.S.C. § 2244(a);

George v. Perrill, 62 F.3d 333, 335 (10th Cir. 1995) (applying abuse of the writ

principles to § 2241 actions).

      A district court properly dismisses a § 2241 petition as successive if a

federal court has previously determined the validity of the petitioner’s detention

in a prior proceeding and no new claim is raised, or a new claim is raised that

could have been raised previously, and the petitioner fails to demonstrate cause

and prejudice or a fundamental miscarriage of justice. M cCleskey v. Zant, 499

U.S. 467, 483-85 (1991); George, 62 F.3d at 335 (10th Cir. 1995). Provided the

inmate is given notice and the opportunity to respond (as occurred here), the

district court may raise the issue of successiveness sua sponte. United States v.

Barajas-Diaz, 313 F.3d 1242, 1246 (10th Cir. 2002) (district court could raise

procedural bar sua sponte, provided inmate given notice and an opportunity to

respond).

      The district court correctly determined that M r. Verner’s petition was

successive because he raised an identical claim in a previous petition and the

court addressed the claim on its merits. Verner, 1998 W L 792059, at *3. To the

extent M r. Verner did not previously raise his claim that duress invalidated his

consent, he has presented no reason to justify his failure to raise it in the previous

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action. Regardless, allegations of duress in a foreign prison would not support a

finding that the transfer was involuntary. See Boyden v. Bell, 631 F.2d 120, 123

(9th Cir. 1980).

      M r. Verner, though he concedes he must bring any claim challenging the

validity of his conviction in a Canadian court, 18 U.S.C. § 3244(1), urges us to

consider his assertion of actual innocence in our fundamental miscarriage of

justice analysis. Because M r. Verner does not challenge the validity of his

underlying conviction, a fundamental miscarriage of justice inquiry is not

appropriate. See Schlup v. Delo, 513 U.S. 298, 320-21 (1995) (“To ensure that

the fundamental miscarriage of justice exception would remain ‘rare’ and would

only be applied in the ‘extraordinary case,’ while at the same time ensuring that

the exception would extend relief to those w ho were truly deserving, this Court

explicitly tied the miscarriage of justice exception to the petitioner's innocence.”).

Regardless, as the district court observed, M r. Verner provides insufficient

support for his claim. The fact that a Canadian court overturned the convictions

of his co-defendants because of prosecutorial misconduct is not enough to support

an actual innocence claim. In any event, the convictions w ere overturned in

1992– well before M r. Verner’s first 1997 habeas petition– and as such, that fact

is not “new.” See Schlup, 513 U.S. at 324 (requiring a petitioner to support

allegation of constitutional error w ith new reliable evidence).




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      Accordingly, we DENY the motion to proceed in forma pauperis and

DISM ISS the appeal.


                                   Entered for the Court


                                   Paul J. Kelly, Jr.
                                   Circuit Judge




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