                                                                           FILED
                            NOT FOR PUBLICATION                             APR 05 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RASHEEN D. FAIRLY,                               No. 08-56180

              Petitioner - Appellant,            D.C. No. 2:08-cv-03471-JVS-RZ

  v.
                                                 MEMORANDUM *
UNITED STATES OF AMERICA,

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                           Submitted February 16, 2010 **
                             San Francisco, California

Before: HUG, BEEZER and HALL, Circuit Judges.

       Prisoner Rasheen D. Fairly appeals pro se from the district court’s denial of

his 28 U.S.C. § 2241 petition for a writ of habeas corpus challenging his 1996 jury

conviction resulting in a mandatory life sentence. We review de novo the district


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
court’s application of collateral estoppel. McQuillion v. Schwarzenegger, 369 F.3d

1091, 1096 (9th Cir. 2004). We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

       The facts of this case are known to the parties. We do not repeat them.

       Collateral estoppel prevents parties from relitigating issues that were

adjudicated in a previous dispute between the same parties. Clark v. Bear Stearns

& Co., Inc., 966 F.2d 1318, 1320 (9th Cir. 1992). Collateral estoppel applies when

“(1) the issue at stake [is] identical to the one alleged in the prior litigation; (2) the

issue [was] actually litigated in the prior litigation; and (3) the determination of the

issue in the prior litigation [was] a critical and necessary part of the judgment in

the action.” Id.

       Collateral estoppel prevents Fairly from relitigating the issue of whether he

may file a 28 U.S.C. § 2241 petition under the “escape hatch” of 28 U.S.C. § 2255.

See Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (describing the

application of § 2255’s “escape hatch”). First, Fairly litigated a previous § 2241

petition against the United States in the Central District of California in 2006.

Second, in that action, the parties litigated the issue of whether Fairly could

collaterally attack his 1990 conviction in a § 2241 petition for a writ of habeas

corpus under the “escape hatch” of § 2255. Third, the district court decided that


                                             2
Fairly could not bring a § 2241 petition because he did not qualify for the § 2255

“escape hatch.” Further, Fairly had nearly identical habeas corpus arguments

heard in 2008.

      AFFIRMED.




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