DLD-270                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 11-1407
                                     ___________

                               TERRANCE K. ALDEN,
                                                           Appellant
                                           v.

                  WARDEN, U.S. PENITENTIARY ALLENWOOD;
                    UNITED STATES PAROLE COMMISSION
                    ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                            (D.C. Civil No. 3-10-cv-02381)
                      District Judge: Honorable Edwin M. Kosik
                     ____________________________________

        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  August 18, 2011

          Before: FISHER, BARRY and VAN ANTWERPEN, Circuit Judges.

                              (Filed: September 9, 2011)
                                      _________

                                      OPINION
                                      _________

PER CURIAM

      Terrance Alden, proceeding pro se and in forma pauperis, appeals the denial of his

habeas corpus petition. We will summarily affirm the judgment of the District Court.
       Alden, a federal prisoner currently incarcerated at USP Allenwood in White Deer,

Pennsylvania, is serving a lengthy federal sentence stemming from, inter alia, a series of

bank robberies.1 In 2009, he filed a 28 U.S.C. § 2241 petition, claiming that various

actions by the United States Parole Commission (“USPC”) violated the Constitution, the

USPC‟s enabling statute, and parole regulations. The petition, filed originally in the

Middle District of Pennsylvania,2 was eventually docketed in the United States District

Court for the Northern District of West Virginia, at docket number 5:09-cv-00076. The

USPC moved to dismiss the petition or, in the alternative, for summary judgment in the

USPC‟s favor. Magistrate Judge David J. Joel agreed with the USPC, crafting a lengthy

Report and Recommendation (R&R) that recommended denying all of the claims on the

merits. See generally Alden v. U.S. Parole Comm‟n, No. 5:09-cv-00076, 2010 U.S. Dist.

LEXIS 29744 (N.D. W. Va. Feb. 26, 2010). In addition, the R&R contained a warning

that a failure to timely object would result in a waiver of appellate rights. Id. at *23.

Alden objected, but did not do so in a timely fashion; however, in its detailed

memorandum opinion adopting the R&R and denying Alden‟s claims on the merits, the


       1
         See United States v. Alden, 576 F.2d 772, 774-75 (8th Cir. 1978) (describing the
somewhat colorful history of the “Bionic Bandit”); see also United States v. Alden, 776
F.2d 771, 772 (8th Cir. 1985) (direct appeal from charge relating to attempted escape
from prison); United States v. Alden, 767 F.2d 314, 316 (7th Cir. 1984) (same). Alden
committed these offenses after escaping from a New Jersey prison, where he was serving
two life sentences for the murder of an armored car guard during a robbery. Alden, 576
F.2d at 775 n.3. The New Jersey sentences are not before this Court.
       2
           See M.D. Pa. Civ. No. 3:09-cv-01211.


                                              2
District Court observed that the objections would not have changed the outcome of the

case. Alden v. U.S. Parole Comm‟n, No. 5:09-cv-00076, 2010 U.S. Dist. LEXIS 29755,

at *5 n.3 (N.D. W. Va. Mar. 26, 2010).

       Several months later, in September 2010, Alden filed a second § 2241 petition,

again attacking parole decisions. He charged that the previous District Court

adjudication had failed to address certain constitutional claims, such as the alleged

violation of his First Amendment rights by the USPC. Filed originally in the Middle

District of Pennsylvania,3 the petition was transferred to the Western District of

Oklahoma.4 Determining the petition to be an abuse of the writ, and finding that the

previous District Court adjudication did not fail to address the aforementioned

constitutional claims, the Magistrate Judge recommended dismissing the petition. Alden

v. U.S. Parole Comm‟n, No. CIV-10-975, 2011 U.S. Dist. LEXIS 41916, at *8–13 (W.D.

Okla. Jan. 24, 2011). The District Court concurred. Alden v. U.S. Parole Comm‟n, No.

CIV-10-975, 2011 U.S. Dist. LEXIS 41900, at *4-5 (W.D. Okla. Apr. 18, 2011).

       While the Oklahoma action was pending, Alden filed a third § 2241 petition, the

subject of the present action. He again raised claims against the USPC, challenging, inter

alia, the USPC‟s “misapplication” of certain regulations, the validity of his 1980s-era


       3
           See M.D. Pa. Civ. No. 3:10-cv-01862.
       4
        It appears that both of Alden‟s prior petitions were transferred to the District in
which he was serving his sentence at the time his petition was processed. See 28 U.S.C.
§ 2241(d).


                                             3
parole waiver, failure to deliver timely notice of USPC decisions, and actions taken that

violated his constitutional rights; he also attacked the outcome of his earlier, West

Virginia petition, describing it as contravening the “Prisoner Mailbox Rule” while

simultaneously failing to address several of his claims. This third petition was

successfully docketed in the Middle District of Pennsylvania. Taking judicial notice of

the West Virginia petition – but not the Oklahoma petition – the District Court sua sponte

dismissed this action as an abuse of the writ. Alden filed a motion to alter or amend the

judgment5 and a timely notice of appeal.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. In reviewing the denial of a

28 U.S.C. § 2241 petition, we “exercise plenary review over the District Court‟s legal

conclusions and apply a clearly erroneous standard to its findings of fact.” See O‟Donald

v. Johns, 402 F.3d 172, 173 n.1 (3d Cir. 2005); see also United States v. Friedland, 83

F.3d 1531, 1542 (3d Cir. 1996) (“Our review of the district court‟s order denying . . .

relief under 28 U.S.C. § 2241 is plenary.”). 28 U.S.C. § 2241 is a proper vehicle for

challenging federal parole decisions. Furnari v. U.S. Parole Comm‟n, 531 F.3d 241, 255

(3d Cir. 2008); Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001). “[A]buse-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.” Queen v. Miner, 530 F.3d 253, 255

       5
        This motion was denied on June 16, 2011, but as Alden has not complied with
Federal Rule of Appellate Procedure 4(a)(4)(B)(ii), which requires the filing of either a
new or amended notice of appeal, it is not before us. See United States v. McGlory, 202
F.3d 664, 668 (3d Cir. 2000).


                                              4
(3d Cir. 2008). A petitioner may justify his prior omission by showing cause and

prejudice for his failure to earlier raise a claim. In re Minarik, 166 F.3d 591, 600 (3d Cir.

1999). And “[i]n a case in which a successive petition includes a claim for relief already

fully considered and rejected . . . the petitioner [must] show that „the ends of justice‟

would be served by the court entertaining his petition.” Funari, 531 F.3d at 251.

       As a preliminary matter, the District Court may have erred in dismissing the

petition sua sponte for abuse of the writ without giving Alden prior notice and an

opportunity to respond. See Lamp v. Iowa, 122 F.3d 1100, 1106 (8th Cir. 1997); Femia

v. United States, 47 F.3d 519, 524–25 (2d Cir. 1995) (holding that notice is required

when a claim in a successive petition may demonstrate actual prejudice, or where the lack

of actual prejudice “is not clearly manifest from the record”); see also McCleskey v.

Zant, 499 U.S. 467, 494 (1991) (“When a prisoner files a second or subsequent

application, the government bears the burden of pleading abuse of the writ.”). But such

an error would, regardless, be of no consequence, for Alden has had numerous

opportunities to justify his writ, both below and on appeal; any error would therefore be

harmless. Stanko v. Davis, 617 F.3d 1262, 1271 (10th Cir. 2010) (applying harmless

error analysis to sua sponte dismissal when the petitioner had other opportunities to plead

validity of his petition).

       We are otherwise in full accord with the District Court. Alden has twice before

raised these exact claims or their close cousins. In West Virginia, his claims received an

extensive merits analysis, while in Oklahoma, the District Court addressed his concerns

                                              5
regarding an alleged failure to “resolve” claims in the first petition. Of course, we do not

sit in review of either of those courts; all the same, Alden cannot plausibly claim that his

arguments have gone unanswered and unaddressed. To the extent that his current petition

raises new claims, Alden has not justified his prior omission by showing cause or

prejudice. To the extent that this petition raises claims already adjudicated, as is

primarily the case, Alden has failed to show that reconsideration is mandated by an

appeal to the ends of justice. Finally, whatever procedural errors may have been

committed by the prior courts to address these claims, this forum is not the proper venue

in which to address them.

       In sum, Alden‟s current petition is barred as an abuse of the writ. As the appeal

presents no substantial question, we will summarily affirm the decision of the District

Court. Murray v. Bledsoe, ___ F.3d ___, 2011 U.S. App. LEXIS 11702, at *3 (3d Cir.

June 10, 2011, No. 10-4397); see also Third Cir. L.A.R. 27.4; I.O.P. 10.6.




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