                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS                  April 15, 2009
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 JOHN J. McCARTHY,
               Petitioner-Appellant,                      No. 08-1386
          v.                                    (D.C. No. 08-CV-00961-ZLW)
 WARDEN USP FLORENCE,                                      (D. Colo.)
               Respondent-Appellee.


                           ORDER AND JUDGMENT *


Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.


      Pro se Petitioner John J. McCarthy, a federal prisoner, appeals the district

court’s denial of his 28 U.S.C. § 2241 habeas corpus petitions.

      Petitioner filed two habeas petitions in the same case, asserting various

claims. The first petition asserted claims relating to deliberate indifference to his

medical needs, limited access to the courts and the administrative process,

reckless endangerment from prison gangs, and his placement in solitary



      *
        This order and judgment is not binding precedent, except under the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.
       After examining the briefs and the 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). Therefore, this case
is ordered submitted without oral argument.
confinement. The second petition constitutes the main focus of the case. In it,

Petitioner challenged the computation of his federal sentence. Specifically, he

claimed he was entitled to credit against his federal sentence for seven years he

spent serving a state sentence.

      By way of background, in January 1994, Petitioner was sentenced in federal

district court to 235 months in prison. Although aware Petitioner would be

sentenced in state court soon thereafter, the federal court did not indicate whether

the federal sentence was to run concurrently with or consecutively to the state

sentence. The state court subsequently sentenced Petitioner to 84 months in

prison, to run concurrently with the federal sentence. Petitioner first served his

state sentence. Upon its completion, he was moved into federal custody to begin

his federal sentence. Petitioner challenges the Bureau of Prison’s refusal to grant

credit against his federal sentence for the time spent in state custody.

      We review the district court’s legal conclusions in denying Petitioner’s

habeas claims de novo. See Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir.

1999). The district court rejected Petitioner’s challenge to the execution of his

sentence on the grounds that his claim was successive. As noted by the court,

Petitioner previously raised the same claim in the United States District Court,

District of Kansas, in 2006. We affirmed the district court’s dismissal of this

claim in McCarthy v. Warden, 168 F. App’x 276, 277 (10th Cir. 2006). In

McCarthy, we noted that Connecticut had primary custody over Petitioner and had

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given him state credit for the time he served before transferring him to federal

custody. Accordingly, under 18 U.S.C. § 3585(b), where the federal district court

did not order the sentences to run concurrently, Petitioner did not merit federal

credit for serving state time. In this case, Petitioner raises the same claims as in

the prior case, but combines them with slightly different legal arguments on

appeal.

      Petitioner first contends that the district court erroneously relied upon

George v. Perrill, 62 F.3d 333 (10th Cir. 1995), in dismissing his petition because

the Antiterrorism and Effective Death Penalty Act, 110 Stat. 1214, does not apply

to § 2241 appeals. With this contention, Petitioner succeeds in highlighting a

problematic aspect of the district court’s opinion. George is a pre-AEDPA case.

Post-AEDPA, it is unclear whether appellate court preauthorization is required

before a prisoner may file a second or successive writ of habeas corpus under §

2241. As we noted in Ackerman v. Novak, 483 F.3d 647 (10th Cir. 2007):

      Prior to AEDPA, this court held in George v. Perrill, 62 F.3d 333,
      334 (10th Cir. 1995), that “a section 2241 petition which presents no
      new grounds for relief is subject to dismissal as a successive petition
      unless the ends of justice require consideration of the merits.” We
      based this holding on the pre-AEDPA version of 28 U.S.C. §
      2244(a), which stated: “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 and the petition presents no
      new ground not heretofore presented and determined, and the judge
      or court is satisfied that the ends of justice will not be served by such

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      inquiry.” George, 62 F.3d at 334 (quoting pre-AEDPA version of §
      2244(a)).

       AEDPA amended § 2244(a) in 1996 to now read: “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) (emphasis
      added).

      The reference to § 2255 in the AEDPA-amended version of § 2244(a)
      appears to incorporate the appellate pre-authorization gatekeeping
      requirements of § 2255 para. 8, which sets forth the grounds upon
      which a circuit court may authorize a second or successive § 2255
      motion, and, in turn, incorporates the pre-authorization procedures in
      § 2244(b)(3). We do not decide this issue, however . . . .

Id. at 649–650.

      However, post-AEDPA published cases from other circuits generally point

to the lack of a gatekeeping requirement for successive § 2241 appeals. For

instance, in Antonelli v. Warden, 542 F.3d 1348 (11th Cir. 2008), the Eleventh

Circuit concluded that because the petitioner raised claims cognizable under §

2241 but not § 2255, his petition was not subject to gatekeeping. Therefore, the

district court’s dismissal of the § 2241 petition for failure to obtain prior appellate

permission to file was erroneous. However, the court affirmed the district court

on an alternative basis: because the petitioner’s claims were successive. Quoting

the post-AEDPA version of § 2244(a), the court determined that because the

petitioner’s claims had been previously adjudicated on the merits in a habeas


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proceeding, his petition was successive and properly dismissed. With respect to

§ 2244(a)’s reference to § 2255, the court explained:

      At first glance, one might conclude from the proviso (“except as
      provided in section 2255”) that § 2241 petitions by federal prisoners
      are indeed subject to gatekeeping via § 2255(h), which is the only
      provision of § 2255 addressing the fate of successive motions to
      vacate. But § 2255(h), by its terms, applies only to a “second or
      successive motion”—that is, a second or successive motion to vacate
      a sentence under § 2255. Hence, § 2255(h) does not apply to § 2241
      habeas corpus petitions, assuming the prisoner raises claims properly
      brought under the latter provision.

Id. at 1352 n.2.

      Also in Antonelli, the Eleventh Circuit outlined the approaches of other

circuits to address the issue, noting that the four circuits that had considered the

issue generally agreed that gatekeeping requirements did not apply to successive §

2241 petitions:

      First, the Seventh Circuit in the case of Valona v. United States, 138
      F.3d 693, 694–95 (7th Cir. 1998), considered the issue in
      circumstances similar to those presented here: a convicted federal
      prisoner challenging a parole determination under § 2241, after
      previously seeking relief under § 2255. The court concluded no
      gatekeeping was required for collateral attacks by a federal prisoner
      that “do not address the conviction or sentence.” Id. at 695. Other
      circuits have held that § 2241 petitioners filing second or successive
      petitions for relief from deportation, Zayas v. INS, 311 F.3d 247,
      255–56, (3rd Cir. 2002), or from extradition, Barapind v. Reno, 225
      F.3d 1100, 1111 (9th Cir. 2000), need not obtain prior appellate
      approval. . . .

            Nor does Rittenberry v. Morgan, 468 F.3d 331 (6th Cir. 2006),
      suggest a contrary result. In that case, the Sixth Circuit held that
      some § 2241 petitions are subject to gatekeeping under § 2244(b).
      But any appearance of conflict is illusory. In Rittenberry, unlike the

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      other three cases cited supra, the prior petition was filed under §
      2254. Then, the state prisoner simply filed successive claims,
      nominally under § 2241, that sought to collaterally attack his
      judgment of conviction. In other words, the petitioner sought to
      avoid the procedural strictures of § 2254 by captioning his petition
      “2241.” Subjecting such petitions to gatekeeping is not inconsistent
      with the above-cited authority, nor with the logic of our own cases.

Id. at 1351.

      To date, this circuit has not settled this issue. Indeed, our unpublished

cases have largely continued to follow George (as did the district court), applying

the pre-AEDPA version of § 2244(a). See, e.g., White v. McKinna, No. 06-1069,

2006 WL 1234867, at *1 (10th Cir. May 2, 2006) (unpublished); Maxwell v.

Janecka, 191 F. App’x 717, 718 (10th Cir. 2006); Verner v. AG, 190 F. App’x

592, 593–594 (10th Cir. 2006); Woodberry v. McKune, 130 F. App’x 246, 247

(10th Cir. 2005). In light of the unsettled question of whether appellate court

preauthorization is required before a prisoner may file a successive writ under §

2241 or whether district courts may continue to address this issue as they did pre-

AEDPA, it seems problematic for the district court to dismiss Petitioner’s writ

sua sponte based on the pre-AEDPA version of § 2244(a). The court’s rejection

of the rest of Petitioner’s claims as abusive is similarly problematic. It is not

clear whether pre-AEDPA case law regarding abusive petitions continues to apply

under the revised version of § 2244(a). Therefore, although we reach no

conclusions about the ultimate merits of this case or any other procedural issues

that may be present, we conclude the court’s dismissal of the action sua sponte

                                          -6-
without consideration of these unsettled legal questions or briefing by the

respondent was in error. Therefore, we remand this case for further consideration

of this issue.

       For the foregoing reasons, we REVERSE the district court’s dismissal of

Petitioner’s § 2241 action, and we REMAND for further proceedings not

inconsistent with this order and judgment. In so doing, we reach no conclusions

as to the ultimate merits of this case, nor do we reach any procedural issues that

may be raised on remand. Additionally, we GRANT Petitioner’s motion to

proceed in forma pauperis. All other pending motions are DENIED.

                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




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