                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-25-2008

Queen v. Miner
Precedential or Non-Precedential: Precedential

Docket No. 08-1049




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Recommended Citation
"Queen v. Miner" (2008). 2008 Decisions. Paper 930.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/930


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HLD-82                                 PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT



                      No. 08-1049



           SAMUEL ROBERT QUEEN, JR.,
                             Appellant

                           v.

            JONATHAN C. MINER, Warden



     On Appeal from the United States District Court
         for the Middle District of Pennsylvania
            D.C. Civil Action No. 07-cv-1679
              (Honorable John E. Jones III)



   Submitted for Possible Summary Action Pursuant to
         Third Circuit LAR 27.4 and IOP 10.6
                   February 29, 2008

            Before: SCIRICA, Chief Judge,
         ALDISERT and GARTH, Circuit Judges.
                    (Filed: June 25, 2008)

Samuel Robert Queen, Jr.
Appellant, Pro Se

Kate L. Mershimer, Esquire
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, Pennsylvania 17108
       Attorney for Appellee



                 OPINION OF THE COURT



PER CURIAM.

      Samuel Robert Queen, Jr. appeals from an order of the
United States District Court for the Middle District of
Pennsylvania, dismissing his habeas corpus petition filed
pursuant to 28 U.S.C. § 2241. We will affirm the District
Court’s order.

        Queen’s habeas petition presented due process challenges
and also challenged the finding that he was guilty of an
institutional infraction for Possession, Manufacture, or
Introduction of a Weapon, Code 104. See 28 C.F.R. § 541.13


                               2
(listing prohibited acts). The Respondent below noted that
Queen had already raised the same claims, challenging the same
incident unsuccessfully, in a § 2241 habeas petition filed in the
United States District Court for the District of Kansas.1 The
Respondent asked the Court to dismiss Queen’s petition on the
basis of claim preclusion and issue preclusion.

        The District Court, without addressing the availability of
relief under § 2241, see In re Dorsainvil, 119 F.3d 245 (3d Cir.
1997), dismissed Queen’s § 2241 petition as successive.2 We



   1
      Queen’s subsequent appeal to the United States Court of
Appeals for the Tenth Circuit and his petition for writ of
certiorari were also unsuccessful. See Queen v. Nalley, No. 07-
3163, 2007 WL 2981420 (10 th Cir. Oct. 12, 2007), cert. denied,
128 S. Ct. 2061 (Apr. 21, 2008).
   2
     A challenge, such as this one, to a disciplinary action that
resulted in the loss of good-time credits, is properly brought
pursuant to § 2241, as the action could affect the duration of the
petitioner’s sentence. See Preiser v. Rodriguez, 411 U.S. 475,
500 (1973) (challenge that affects fact or duration of
confinement must be brought in habeas petition); Carmona v.
U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001)
(petition that challenges prison disciplinary sanction, including
loss of good-time credits, is a challenge to execution of sentence
properly brought under § 2241); McIntosh v. U.S. Parole
Comm’n, 115 F.3d 809, 812 (10th Cir.1997) (same); see also

                                3
have noted, in the context of a § 2241 petition brought by an
immigration detainee, that § 2241 petitions are not subject to the
gatekeeping mechanism of § 2244(b); i.e., a petitioner need not
seek permission from a court of appeals before filing a second
or successive § 2241 petition. See Zayas v. INS, 311 F.3d 247,
255 (3d Cir. 2002). We have further recognized that the
abuse-of-the-writ doctrine applies to section 2241 petitions;
thus, a petitioner may not raise new claims that could have been
resolved in a previous action. Id at 257; McCleskey v. Zant,
499 U.S. 467, 483-86 (1991).

       As we noted in Zayas, the provisions of § 2244(b) refer
specifically to claims presented in a second or successive habeas
corpus petition filed pursuant to 28 U.S.C. § 2254 and therefore
do not apply to a petition filed pursuant to § 2241. However,
§ 2244(a), as set forth in the margin,3 does not reference § 2254,



Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 758-59 (3d
Cir.1996) (entertaining, without discussion of propriety of the
vehicle, prisoner’s challenge to loss of good time credits
following disciplinary proceeding brought pursuant to § 2241).
   3
       Subsection (a) provides:
         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

                                 4
and thus by its terms applies to any application for a writ of
habeas corpus filed by a person who is in detention pursuant to
a judgment of a court of the United States.4 See Valona v.
United States, 138 F.3d 693, 695 (7th Cir. 1998) (noting that “§
2244(a) bars successive petitions under § 2241 directed to the
same issue concerning execution of a sentence”); Chambers v.
United States, 106 F.3d 472, 475 (2d Cir.1997) (dismissing
pursuant to § 2244(a) jail-credit claim brought in earlier § 2241
petition).

        The District Court here properly found that the issues
raised in Queen’s § 2241 petition either had been, or could have
been, decided in his previous habeas action. We therefore will
affirm the District Court’s judgment dismissing the action
pursuant to 28 U.S.C. § 2244(a).




      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.A. § 2244(a).
    4
      We had no occasion to apply § 2244(a) in Zayas, as the
petitioner there was not in detention pursuant to the judgment of
a court of the United States. See also Barapind v. Reno, 225
F.3d 1100, 1111 (9 th Cir. 2000) (holding that § 2244(a) does not
apply to § 2241 petition filed by immigration detainee).

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