                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-18-2002

Zayas v. INS
Precedential or Non-Precedential: Precedential

Docket No. 01-2564




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PRECEDENTIAL

       Filed November 18, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-2564

RANIEL PEREZ ZAYAS, Appellant

v.

IMMIGRATION & NATURALIZATION SERVICE

Appeal From the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 99-cv-01325)
District Judge: Honorable A. Richard Caputo

Argued: February 4, 2002

Before: SLOVITER and AMBRO, Circuit Judges,
and POLLAK, District Judge.*

(Filed: November 18, 2002)

Daniel I. Siegel, Esquire
James V. Wade, Esquire
Office of Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101-2540
_________________________________________________________________

* The Honorable Louis H. Pollak, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.


       Melinda C. Ghilardi, Esquire
        (Argued)
       Office of Federal Public Defender
       Kane Professional Building, Suite 2C
       116 North Washington Avenue
       Scranton, PA 18503-1800

       Attorneys for Appellant

       Robert D. McCallum, Jr.,
        Assistant Attorney General
       Christopher C. Fuller,
        Senior Litigation Counsel
       Lyle D. Jentzer, Esquire (Argued)
       United States Department of Justice
       Office of Immigration Litigation
       United States Department of Justice
       P.O. Box 878
       Ben Franklin Station
       Washington, D.C. 20044

       Attorneys for Appellee
OPINION OF THE COURT

POLLAK, District Judge.

In this appeal, we consider the applicability to petitions
for habeas corpus filed pursuant to 28 U.S.C. S 2241 of
both (1) the "gatekeeping mechanism" by which 28 U.S.C.
S 2244(b) limits the filing of second or successive petitions
for habeas corpus, and (2) the "abuse of the writ" doctrine
as expressed in the Supreme Court’s decision in McCleskey
v. Zant, 499 U.S. 467 (1991). We will affirm the District
Court’s decision dismissing the petition of appellant Raniel
Perez Zayas for abuse of the writ.

I. FACTUAL AND PROCEDURAL BACKGROUND

Raniel Perez Zayas is a Cuban citizen who was paroled
into the United States in 1966 at the age of two, pursuant
to S 212(d)(5) of the Immigration and Nationality Act ("INA"),
8 U.S.C. S 1182(d)(5).1 In 1974 he acquired permanent
_________________________________________________________________

1. The version of S 212(d)(5)(A) applicable to Zayas in 1966 provided: "The
Attorney General may in his discretion parole into the United States

                                2


resident status retroactive to 1969. On March 23, 1990,
Zayas was convicted in New York State Supreme Court,
Queens County, of two felony offenses: attempted robbery
in the second degree and criminal sale of cocaine in the
fifth degree. He was sentenced to a prison term of one and
one-third years to four years.

As a consequence of the conviction for the sale of
cocaine, Zayas was ordered on January 22, 1991 by the
Immigration and Naturalization Service ("INS") to show
cause why he should not be deported. On January 10,
1992, he filed an application for relief under S 212(c) of the
INA, 8 U.S.C. S 1182(c) (repealed effective April 1, 1997).
Section 212(c) authorized the Attorney General to admit, in
his or her discretion, an otherwise deportable alien who
had established lawful domicile in the United States for
seven or more years. Such relief was unavailable under the
statute if the alien had committed two or more crimes of
moral turpitude; aliens who were faced with deportation
solely on account of having committed a drug offense were
eligible for relief.2

Zayas’s deportation hearing was scheduled for April 26,
1994; however, due to an intervening arrest and conviction
on February 15, 1994 for attempted robbery in the second
degree, his immigration case was administratively closed
pending his release from state custody. The hearing was re-
scheduled and held on January 16, 1997.

At the hearing, Zayas conceded the truth of all the
allegations contained in the order to show cause, and again
applied to the Immigration Judge ("IJ") for waiver of
_________________________________________________________________

temporarily under such conditions as he may prescribe for emergent
reasons or for reasons deemed strictly in the public interest any alien
applying for admission to the United States . . . ." 8 U.S.C.
S 1182(d)(5)(A) (1964).

2. Section 212(c) was repealed by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208,
110 Stat. 3009-597 (1996). The repeal operated with respect to cases in
which the INS instituted deportation proceedings on or after April 1,
1997; because the proceedings against Zayas had been instituted before
that date, the repeal did not affect him.

                                  3


inadmissibility under S 212(c). A few months earlier,
Congress had enacted the Antiterrorism and Effective Death
Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214
(1996). Section 440(d) of AEDPA amended S 212(c) of the
INA so as to render ineligible for discretionary relief an alien
who had been convicted of various drug offenses, including
the one for which Zayas had been adjudged guilty in 1990.
In his January 16, 1997 decision, the IJ denied Zayas’s
application for S 212(c) relief and ordered Zayas deported to
Cuba.

The deadline for seeking Board of Immigration Appeals
("BIA") review of the IJ’s deportation order was February 18,
1997. Zayas -- detained and acting pro se-- drafted a
"perfected appeal" challenging the IJ’s decision. With
respect to the S 212 (c) issue he wrote:

       A.) My case and my petition for 212-c Waiver
       "preceeds" the new laws . . . .

       B.) At this time, my Waiver for 212-c is pending and
       I made this fact known to the Immigration Judge
       . . . .

        The language describing who may be eligible for
       212-c Waiver states that a "permanent resident" (or
       green card holder) who has been in the U.S. for at
       least seven years at the time of filing must be
       considered. 8 C.F.R. Section 212(f)(2) . . .. When
       the description given is held in comparison to the
       circumstances of my case then, there can be no
       question that I am a suitable candidate for some
       form of 212 Waiver.

        I must reiterate   that I already have an application
       for 212-c pending   with the I.N.S. and this
       information alone   should have resulted in the
       Immigration Judge   staying and or postponing any
       further action on   my case until such time that as a
       final disposition   regarding my 212-c Waiver is
       handed down.
        The United States Constitution promises under the
       Fourteenth (14) Amendment which in fact
       guarantees "equal protection" to aliens and citizens

                                4


       alike . . . . Not only has   the spirit of the 14th
       Amendment been broken but,   in the partial manner
       in which the Judge decided   this, the actual letter of
       the law is being blatantly   broken as well. . . .

        Furthermore, I file[d] an "order to show cause" and
       the accompanying 212-c Waiver on the INS and the
       Attorney General’s Office dated 1991, and[there]
       has been no disposition as of yet . . . . Both the show
       cause and the 212-c Waiver were file[d] years before
       any of the recent changes in the INA Law went into
       effect.

According to Zayas, he mailed his notice of appeal from
prison on February 16, 1997, two days before the February
18 filing deadline; however, Zayas’s appeal was not received
by the BIA until February 24. The BIA dismissed the appeal
as untimely on April 16, 1997.3

Subsequent to the BIA’s dismissal of his appeal, Zayas
filed a series of habeas corpus petitions. Acting pro se,
Zayas filed two habeas petitions in the District Court for
the Eastern District of Pennsylvania.
_________________________________________________________________

3. Since the appropriateness of the BIA’s dismissal of Zayas’s appeal as
untimely is not at issue here, we will simply note that the BIA’s
administration of its timeliness rules seems, in spirit, not entirely in
harmony with the Supreme Court’s opinion in Houston v. Lack, 487 U.S.
266 (1988), in which the Court ruled that a pro se prisoner’s appeal to
the court of appeals of a district court order dismissing his habeas
corpus petition was timely filed, in conformity with Federal Rule of
Appellate Procedure 4(a)(1), when handed to the prison authorities in the
facility in which he was in custody within the time specified by Rule
4(a)(1): "The situation of prisoners seeking to appeal without the aid of
counsel is unique. Such prisoners cannot take the steps other litigants
can take to monitor the processing of their notices of appeal and to
ensure that the court clerk receives and stamps their notices of appeal
before the 30-day deadline. . . . [T]he pro se prisoner has no choice but
to entrust the forwarding of his notice of appeal to prison authorities
whom he cannot control or supervise and who may have every incentive
to delay. . . . Unskilled in law, unaided by counsel, and unable to leave
the prison, his control over the processing of his notice necessarily
ceases as soon as he hands it over to the only public officials to whom
he has access -- the prison authorities. . . ." 487 U.S. at 270-271; see
also Burns v. Morton, 134 F.3d 109, 112-13 (3rd Cir. 1998).

                                5


In the first petition, filed on June 15, 1998, Zayas argued
that his indefinite detention pending deportation was
unlawful. In a Report and Recommendation, Magistrate
Judge Rapoport found Zayas to be "in error regarding the
applicable law," and recommended that the petition be
"DENIED AND DISMISSED." Judge Reed approved and
adopted the Report and Recommendation on October 6,
1998.

Zayas’s second habeas petition was filed on June 30,
1999. Magistrate Judge Rapoport filed a Report and
Recommendation in which he found that Zayas had raised
essentially the same issues as he had in the first petition,
and that Zayas’s petition should therefore be dismissed.
Again Judge Reed adopted the Report and Recommendation
and dismissed the second habeas petition on August 11,
1999.

Meanwhile, on July 26, 1999, Zayas had filed with this
court a petition styled "Motion for Review." In this
submission, Zayas asked this court to review a decision by
the INS District Director denying Zayas’s release from
detention.4 The INS subsequently moved to dismiss the
"Motion for Review." On March 3, 2000, this court denied
the motion to dismiss and ordered that the "Motion for
Review" and an accompanying motion for appointment of
counsel be transferred to the District Court for the Middle
District of Pennsylvania (the district in which Zayas was in
custody), instructing that the matter "be treated as a
petition for habeas corpus under 28 U.S.C. S 2241."

The grievance that Zayas had pressed in his first two
habeas petitions -- to wit, his claim that his indefinite
detention was unlawful -- was resolved on June 30, 2000,
when he was released from INS custody on bond pending
his removal to Cuba. Upon his release, Zayas moved to
dismiss the habeas petition that had its genesis as a
"Motion for Review," and which was by that time pending in
_________________________________________________________________

4. As the   government points out in its brief on this appeal, the District
Court was   under the impression that the "Motion for Review" constituted
an appeal   by Zayas to this court from the dismissal of his second habeas
petition.   Rather, the "Motion for Review" initiated a separate proceeding.
Brief for   Appellee at 6 n.3.

                                  6


the Middle District. The District Court granted Zayas’s
motion and dismissed the petition on July 12, 2000.

On July 27, 1999 -- one day after filing in this court the
"Motion for Review" challenging his continued detention,
but several months before the "Motion for Review" was
transferred by this court to the Middle District-- Zayas
filed in the Middle District a new habeas petition under
S 2241. In this petition, Zayas did not raise the indefinite
detention issue which he had sought to present in the two
Eastern District habeas petitions and which, in a later
context, was the subject of the "Motion for Review." Instead,
he sought "judiciary review, based on a determination that
he is eligible for relief from deportation under section 212(c)
of the Immigration and Nationality Act" -- a reprise of the
issue Zayas had attempted to present in the appeal
dismissed by the BIA as untimely. In his Report and
Recommendation, Magistrate Judge Durkin concluded that
the new S 2241 petition should be dismissed on two
alternative grounds.

First, he found Zayas’s petition to be a second or
successive petition which can only be filed in a district
court if the court of appeals has granted permission for
such filing. In his Report and Recommendation, Magistrate
Judge Durkin summarized the process as follows:

       [P]ursuant to 28 U.S.C. S 2244(b)(3)(A), prior to filing a
       second or successive petition, a petitioner must move
       in the appropriate court of appeals for an order
       authorizing the district court to consider the
       application. Pursuant to S 2244(b)(2), in order for the
       court of appeals to grant such an application, it must
       find that the claim presented in the second or
       successive petition relies on a new rule of
       constitutional law, made retroactive to cases on
       collateral review by the Supreme Court, that was
       previously unavailable, or that the factual predicate for
       the claim could not have been discovered previously
       through the exercise of due diligence and that the facts
       underlying the claim, if proven and viewed in the light
       of the evidence as a whole, would be sufficient to
       establish by clear and convincing evidence that, but for
       constitutional error, no reasonable fact finder would

                                7


       have found the petitioner guilty of the underlying
       offense.5

Second, Magistrate Judge Durkin found that Zayas was
raising a procedural due process claim, and was therefore
required to exhaust administrative remedies as required by
the INA, 8 U.S.C. SS 1105a, 1252(d), and that Zayas’s
failure to perfect his appeal before the BIA constituted a
failure to exhaust administrative remedies. On April 25,
2001, Judge Caputo adopted Magistrate Judge Durkin’s
Report and Recommendation, but with certain
modifications. First, Judge Caputo considered the
applicability of the gatekeeping mechanism of S 2244(b) to
habeas petitions filed pursuant to S 2241. Relying on
decisions of the Seventh Circuit, Valona v. United States,
138 F.3d 693 (7th Cir. 1998), and the Ninth Circuit,
Barapind v. Reno, 225 F.3d 1100 (9th Cir. 2000), Judge
Caputo concluded that S 2241 petitions were not subject to
S 2244(b)’s gatekeeping regime.

Having concluded that S 2244(b) was inapplicable, Judge
Caputo noted that the petition "does raise an issue which
could have been raised in his first petition." With matters in
this posture, Judge Caputo concluded that "the petition
should be considered in the context of the Supreme Court
decision of McCleskey [v. Zant, 499 U.S. 467 (1991)] for
abusing the writ." Judge Caputo determined that Zayas
was presenting in his Middle District petition an issue --
namely, "a contention that the restrictions of the AEDPA
should not have been retroactively applied" -- that could
have been raised in his first habeas petition in the Eastern
District, that Zayas had "failed to show any cause,
prejudice or a fundamental miscarriage of justice for failing
to include that argument in his first petition," and hence
that the Middle District petition had to be dismissed for
abuse of the writ.
_________________________________________________________________

5. Magistrate Judge Durkin also found Zayas’s Middle District petition
barred by operation of Rule 9(b) of the Rules Governing S 2254 Cases.
However, the District Court did not address Rule 9(b), and neither Zayas
nor the government has referred to the Rule in the briefs submitted to
this court; further, we have not found that our disposition of this appeal
requires reference to the Rule.

                                8


Judge Caputo also found that the Middle District petition
raised procedural due process questions and was therefore
subject to dismissal for failure to exhaust administrative
remedies.

The dismissal of Zayas’s Middle District petition has
given rise to the current appeal.

II. STANDARD OF REVIEW

Until a decade ago, the legal principles comprising the
doctrine of abuse of the writ were a somewhat amorphous
melange of statutes and case law, and administration of the
doctrine was primarily committed "to the sound discretion
of the federal trial judges." Sanders v. United States, 373
U.S. 1, 18 (1963). In 1991 -- as we point out infra, in part
III of this opinion -- the doctrine of abuse of the writ
underwent a sea-change: in McCleskey v. Zant, 499 U.S.
467 (1991), the Supreme Court reformulated the doctrine,
"replac[ing] the nebulous and discretionary‘ends of justice’
standard with the more concretely defined cause and
prejudice standard borrowed from procedural default law,"
a standard that "is an objective one which ‘clarifies the
imprecise contours’ of the test that the district courts are to
apply." Macklin v. Singletary, 24 F.3d 1307, 1312 (1994).
The McCleskey reformulation led the Eleventh Circuit, in
Macklin, to reexamine at some length the appropriate
standard of appellate review of district court decisions
relating to claims of abuse of the writ. The Eleventh Circuit,
in an opinion by Judge Carnes, concluded that: "In this
post-McCleskey era, the abuse of the writ doctrine presents
objective, threshold questions involving the application of
law to facts. We review district court rulings on such issues
not under an abuse of discretion standard, but de novo." 24
F.3d at 1313.

We agree with Judge Carnes’s thoughtful analysis.
III. DISCUSSION

28 U.S.C. S 2241 -- the "primary federal habeas corpus
statute,"6 Zadvydas v. Davis, 533 U.S. 678, 687 (2001) --
is the vehicle by which an alien who is in custody may seek
_________________________________________________________________

6. See infra, note 8.

                                9


judicial review of INS actions that affect the alien’s status.
INS v. St. Cyr, 533 U.S. 289, 308, 314 (2001); Chmakov v.
Blackman, 266 F.3d 210, 213 (3d Cir. 2001); Liang v. INS,
206 F.3d 308, 320-21 (3d Cir. 2000).

In Zayas’s Middle District S 2241 petition, he sought to
present the argument that, because his immigration case
was already pending as of the passage of AEDPA, his
eligibility for S 212(c) relief was not affected by AEDPA. Said
Zayas: "[T]he retroactivity and the restrictions of the
[AEDPA] is no longer permitted to proceedings before its
enactment . . . ." [citing cases, including Sandoval v. Reno,
166 F.3d 225 (3d Cir. 1999)]. This argument is an
elaboration of the argument Zayas attempted to present to
the BIA in the pro se appeal rejected as untimely; however,
the argument was not mentioned in either of the two
Eastern District petitions for habeas corpus. That it went
unmentioned in the second Eastern District petition is
notable because the second petition was filed five months
after this court’s decision in Sandoval v. Reno . In Sandoval,
we held that AEDPA S 440(d), which had the effect of
amending S 212(c) to bar persons convicted of drug offenses
from discretionary relief, was not applicable to cases
pending on the date of the statute’s enactment. 166 F.3d at
239-42; cf. St. Cyr, 533 U.S. at 314-26.

Although the government in this case has accepted the
ruling of Sandoval with respect to the retroactivity issue,
the merits of Zayas’s argument concerning the availability
of S 212(c) relief from his deportation order are not under
consideration; at issue is Zayas’s entitlement to make the
argument in his Middle District petition for habeas corpus.

Since Zayas has previously filed two habeas petitions in
the Eastern District that have not presented theS 212(c)
issue, the government contends that the District Court was
correct in dismissing the habeas petition filed in the Middle
District. In the District Court, the government relied on (1)
28 U.S.C. S 2244(b), the AEDPA gatekeeping mechanism
that requires one who seeks to file a "second or successive"
petition in a district court under S 2254 to first obtain the
permission of the court of appeals, and, (2) in the
alternative, the pre-AEDPA "abuse of the writ" case law
embodied in McCleskey v. Zant, 499 U.S. 467 (1991). In

                                10
this court, the government has refrained from contesting
Judge Caputo’s conclusion that the S 2244(b) gatekeeping
regime does not govern habeas petitions filed underS 2241.7
But the government supports Judge Caputo’s further
conclusion -- challenged by Zayas -- that McCleskey’s
"abuse of the writ" jurisprudence is applicable to, and
operates to bar, Zayas’s petition.

To understand what Congress, in 1996, sought to do in
enacting S 2244(b), one must start with McCleskey, decided
five years before. In McCleskey, the Supreme Court
comprehensively addressed the problem of "abuse of the
writ" presented by sequential habeas filings. The Court
undertook to analyze, and to integrate into a systematic
whole, the then-existing habeas statutes and rules and the
Court’s own principal prior case discussions of abuse of the
writ. The Court announced the following formulation:

       When a prisoner files a second or subsequent
       application, the government bears the burden of
       pleading abuse of the writ. The government satisfies
       this burden if, with clarity and particularity, it notes
       petitioner’s prior writ history, identifies the claims that
       appear for the first time, and alleges that petitioner has
       abused the writ. The burden to disprove abuse then
       becomes petitioner’s. To excuse his failure to raise the
_________________________________________________________________

7. On argument before this court the following colloquy was had:

       Court: Are you saying that on the second question, if the
       statute doesn’t literally apply, you’re agreeing that we
       don’t need to apply the gatekeeper analysis by being
       informed by it, but rather you agree that we can go
       straight to McCleskey?

       Government: Yes, and that’s what we argued in the brief.

       Court: So you’re not taking issue with the District Court on
       that?

       Government: No, we did not [garble] not before this court, your
       Honor.

In response to a further question, government counsel said:

       The statute only applies to [S] 2254 and [S] 2255, which was
       primarily what AEDPA was interested in. It wasn’t really
       contemplating INS decisions.

                                11


       claim earlier, he must show cause for failing to raise it
       and prejudice therefrom as those concepts have been
       defined in our procedural default decisions. The
       petitioner’s opportunity to meet the burden of cause
       and prejudice will not include an evidentiary hearing if
       the district court determines as a matter of law that
       petitioner cannot satisfy the standard. If petitioner
       cannot show cause, the failure to raise the claim in an
       earlier petition may nonetheless be excused if he or she
       can show that a fundamental miscarriage of justice
       would result from a failure to entertain the claim.

499 U.S. at 494-95.

In 1996, in AEDPA, Congress, concerned that successive
habeas petitions filed in federal district courts still seemed
to frustrate finality in the criminal process, amended
S 2244 so as to impose tighter constraints than McCleskey’s
on habeas petitioners invoking S 2254 to present collateral
challenges to state criminal convictions. UnderS 2244(b) as
amended, (1) "[a] claim presented in a second or successive
habeas corpus application under section 2254 that was
presented in a prior application shall be dismissed,"
S 2244(b)(1), and (2) a "second or successive habeas corpus
application under section 2254" presenting a claim not
asserted in a prior habeas petition is subject to dismissal
by the district court, S 2244(b)(2), unless the proposed
petition has been submitted to, and found acceptable by,
the court of appeals, S 2244(b)(3). A court of appeals’s
permission to file is in turn dependent on the petitioner’s
making a prima facie showing that the petition is keyed to
(1) a new rule of constitutional law announced, and stated
to be retroactive, by the Supreme Court, S 2244(b)(2)(A), or
(2) newly discovered facts which, "if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense,"
S 2254(b)(2)(B)(ii). Concurrently with amending S 2244(b) to
affect petitioners challenging state convictions, Congress, in
AEDPA, amended S 2255 to impose substantially identical
constraints on "second or successive" habeas petitions
challenging federal convictions.

                                12


With this history in mind, we now address Judge
Caputo’s rulings that (1) the gatekeeping regime of
S 2244(b) is inapplicable to Zayas’s Middle District S 2241
petition, but (2) Zayas’s petition is, nonetheless, barred
because its filing constitutes abuse of the writ within the
rubric of McCleskey.

A. Is the gatekeeping regime of S 2244(b) applicable to
habeas petitions filed under S 2241?

To determine whether the S 2244(b) gatekeeping regime is
applicable to habeas petitions filed under S 2241, the
proper point of departure is the statutory text, which has
been excerpted supra. The pertinent provisions of S 2244(b)
refer to "a second or successive habeas corpus application
under section 2254." S 2244(b)(1) and S 2244(b)(2). The
statutory text does not in terms govern petitions under
S 2241.

The two circuit courts that have considered the issue
have concluded that the text is to be construed as written.
In Valona v. United States, Judge Easterbrook, for the
Seventh Circuit, put the matter this way:

       Section 2244, which establishes the prior-appellate-
       approval mechanism for second or successive collateral
       attacks, requires permission before "a second or
       successive habeas corpus application under section
       2254" (S 2244(b)(1), (2)) may be commenced. We know
       from Felker v. Turpin, 518 U.S. 651 (1996), that the
       statutory cross-reference must be taken seriously.
       Section 2244 refers to S 2254 but not S 2241, and
       Felker holds that the prior-approval mechanism
       therefore does not apply to petitions under S 2241.
       Section 2255 P 8 requires appellate approval for second
       or successive petitions under S 2255 as well as S 2254
       but does not add S 2241 to the list of covered sections.

138 F.3d 693, 694 (7th Cir. 1998). Similarly, in Barapind v.
Reno, Judge Thomas, for the Ninth Circuit, wrote as
follows:

       In large part, AEDPA codified the abuse of the writ
       doctrine and created a "gatekeeping" mechanism
       restricting the filing of second or successive habeas
       applications in district court.

                                13


        However, the gatekeeping provisions of AEDPA, as
       set forth in 28 U.S.C. S 2244, do not apply to all
       habeas petitions, nor are all multiple collateral attacks
       "second or successive." First, the prior-appellate-review
       mechanism set forth in S 2244(b) requires the
       permission of the court of appeals before "a second or
       successive habeas corpus application under section
       2254" may be commenced. Because S 2244(b) makes
       no reference to habeas petitions filed under S 2241, but
       rather, applies only to petitions filed pursuant to 28
       U.S.C. S 2254, the prior-appellate-review provisions of
       S 2244(b) do not apply to habeas petitions filed under
       S 2241.

225 F.3d 1100, 1111 (9th Cir. 2000) (footnote and citations
omitted).

We agree, as did Judge Caputo, with the Seventh and
Ninth Circuits. We therefore hold that Zayas’s S 2241
petition was not subject to the gatekeeping regime of
S 2244(b).8
_________________________________________________________________

8. The government’s brief states that "the Second and Tenth Circuits
have both taken the view that 28 U.S.C. S 2244 governs S 2241 petitions,
thereby barring successive S 2241 petitions, while the Seventh and Ninth
Circuits disagree that the second or successive habeas corpus language
set forth in S 2244(b) applies to S 2241 petitions." The Second and Tenth
Circuit cases cited by the government are Chambers v. United States,
106 F.3d 472 (2d Cir. 1997); Triestman v. United States, 124 F.3d 361
(2d Cir. 1997); and George v. Perrill, 62 F.3d 333 (10th Cir. 1995).

We think that Chambers, Triestman and George are not in conflict with
Valona and Barapind, the cases quoted in the text of our opinion.
Chambers dismissed a S 2241 petition that sought to relitigate a federal
prisoner’s jail-credit claim asserted, and decided adversely, in a prior
S 2241 petition; the dismissal was predicated on S 2244(a), a finality
provision which applies to any habeas application challenging "the
detention of a person pursuant to a judgment of a court of the United
States," and hence embraces, without textual limitation, habeas
applications brought under S 2255 or underS 2241. See Chambers, 106
F.3d at 474-75. The Triestman discussion cited by the government
likewise relates to S 2244(a). Triestman , 124 F.3d at 373 n.17. George is
similar, but deals with S 2244(a) in its pre-AEDPA form. 62 F.3d at 334.

However, as pointed out supra, note 6, on argument before this court
the government substantially acknowledged that S 2241 is not governed
by the AEDPA gatekeeping regime.

                                14


B. Is Zayas’s S 2241 habeas petition barred as an abuse
of the writ?

Having determined that the gatekeeping regime of
S 2244(b) is inapplicable to a "second or successive" S 2241
habeas petition, we turn now to the question whether, as
Judge Caputo ruled, a "second or successive"S 2241
habeas petition must, nonetheless, be dismissed if its filing
constitutes abuse of the writ.

Zayas argues that Judge Caputo’s analysis was flawed.
According to Zayas, "[t]he district court’s analysis of this
issue is cyclical because a second or successive petition
and abuse of the writ are, in essence, identical doctrines.
Thus, after the district court determines that Zayas’ habeas
petition is not a second or successive petition under
AEDPA, there is no reason to apply the McCleskey abuse of
the writ analysis as AEDPA codified this doctrine in 28
U.S.C. S 2244."

We think the argument mistakes the scope of the AEDPA
habeas amendments. The gatekeeping mechanism created
by Congress was not put in place for all habeas petitioners.
The S 2244(b) structure was, as we have explained above,
specifically addressed to second or successive petitions filed
pursuant to S 2254, i.e., petitions filed by state prisoners
collaterally challenging their convictions on federal
constitutional grounds. As the Supreme Court noted in
Felker v. Turpin, in which it was considering the extent to
which the S 2244(b) gatekeeping regime affected its own
authority to entertain original habeas applications under
SS 2241 and 2254, "[t]he provisions of the Act pertinent to
this case concern second or successive habeas corpus
applications by state prisoners." 518 U.S. 651, 656 (1996).
Similarly, AEDPA’s amendment of S 2255 put a gatekeeping
regime in place for federal prisoners filing second or
successive S 2255 habeas petitions collaterally challenging
federal convictions. Valona, 138 F.3d at 694. In enacting
AEDPA, Congress was focusing on the problem of repetitive
habeas challenges to criminal convictions, state and
federal. Congress did not undertake to address the
dissimilar categories of habeas petitions filed under S 2241
-- which, as noted above, is the "primary federal habeas

                                15


corpus statute,"9 Zadvydas v. Davis, 533 U.S. at 687 --
embracing, for example, applications challenging the
manner in which a valid federal sentence is carried out,
Chambers, 106 F.3d at 475, or applications, like Zayas’s,
challenging INS rulings.

Nor is it the case that the AEDPA gatekeeping regime
simply put in statutory form what McCleskey had already
defined as abuse of the writ. "In large part, AEDPA codified
the abuse of the writ doctrine," Barapind, 225 F.3d at
1111, but, for the categories of habeas petitions that it
directly addressed, it went further. As the Court explained
in Felker v. Turpin:

       The Act . . . codifies some of the pre-existing limits on
       successive petitions, and further restricts the
       availability of relief to habeas petitioners. . . .

        The new restrictions on successive petitions
       constitute a modified res judicata rule, a restraint on
       what is called in habeas corpus practice "abuse of the
       writ." In McCleskey v. Zant, 499 U.S. 467 (1991), we
       said that "the doctrine of abuse of the writ refers to a
_________________________________________________________________

9. The first sentence of subsection (a) of S 2241 states: "Writs of habeas
corpus may be granted by the Supreme Court, any justice thereof, the
district courts and any circuit judge within their respective
jurisdictions." In Felker v. Turpin, the Supreme Court noted that "Section
14 [of the First Judiciary Act, i.e., the Judiciary Act of 1789] is the direct
ancestor of 28 U.S.C. S 2241 . . . ." 518 U.S. 651, 659 n.1 (1996).
Section 14 provided:

       That all the before-mentioned courts of the United States, shall have
       power to issue writs of scire facias, habeas corpus, and all other
       writs not specially provided for by statute, which may be necessary
       for the exercise of their respective jurisdictions, and agreeable to the
       principles and usages of law. And that either of the justices of the
       supreme court, as well as judges of the district courts, shall have
       power to grant writs of habeas corpus for the purpose of an inquiry
       into the cause of commitment. -- Provided, That writs of habeas
       corpus shall in no case extend to prisoners in gaol, unless where
       they are in custody, under or by colour of the authority of the
       United States, or are committed for trial before some court of the
       same, or are necessary to be brought into court to testify.

Act of Sept. 24, 1789, ch. 20, S 14, 1 Stat. 81-82.

                                16
       complex and evolving body of equitable principles
       informed and controlled by historical usage, statutory
       developments, and judicial decisions." Id. , at 489. The
       added restrictions which the Act places on second
       habeas petitions are well within the compass of this
       evolutionary process . . . .

518 U.S. at 664.

In short, AEDPA dealt with habeas petitions under
S 2254 and S 2255 by building on McCleskey rather than
supplanting it. Moreover, the Supreme Court has made it
clear that, even with respect to abuse of the writ scenarios
not governed in terms by AEDPA, its provisions "certainly
inform [judicial] consideration." Calderon v. Thompson, 523
U.S. 538, 558 (1998) (quoting Felker, 518 U.S. at 663). See
also In re Dorsainvil, 119 F.3d 245, 251 (3rd Cir. 1997).
Accordingly, while agreeing with Judge Caputo that Zayas’s
habeas petition -- a S 2241 petition not governed by AEDPA
-- "should be considered in the context of McCleskey," we
would add the caveat that application of McCleskey to
Zayas’s petition should be expected to yield a resolution in
harmony with AEDPA.

Judge Caputo applied McCleskey to Zayas’s petition as
follows (citations omitted):

       In this case, Petitioner filed two prior petitions for
       habeas corpus relief with the Eastern District of
       Pennsylvania arguing that his detention was unlawful
       under 8 U.S.C. S 1252(c). The district court determined
       that Petitioner’s detention was not unlawful and denied
       Petitioner’s request for relief on the merits. Petitioner
       now asks for habeas relief in a third petition stating
       that the restrictions of the AEDPA should not have
       been retroactively applied. He argues that he will be
       able to show that he satisfies the requirements under
       S 212(c) for eligibility if granted the opportunity.
       Respondent has provided evidence that Petitioner had
       originally included this argument in his appeal to the
       BIA and certainly had the opportunity to raise the
       issue in his first habeas petition. Petitioner has not
       provided any explanation as to his reasons for failing to
       raise such issue with the district court in his first

                                17


       habeas petition. Petitioner has failed to show any
       cause, prejudice or a fundamental miscarriage of
       justice for failing to include that argument in his first
       petition. Therefore, Petitioner’s petition for writ of
       habeas corpus will be dismissed not as a second or
       successive petition but for abuse of the writ.

In his brief on appeal, Zayas argues as follows:

        Clearly it would have been preferable for Zayas to
       have raised both the indefinite detention and
       retroactive application of AEDPA’s version of S 212(c) in
       his first habeas petition. However, he did not do so
       because at the time he filed his first habeas petition he
       was most concerned with his indefinite detention and
       ultimate release from incarceration. As a pro se
       litigant, he did not realize that the abuse of the writ
       doctrine or the prohibition against second or
       successive petitions even existed. His primary concern
       was his release from incarceration. Once that request
       was denied, he accepted that he would remain
       incarcerated and began to focus on the issues that
       would enable him to remain in the United States with
       his family.

The argument seeks to explain Zayas’s failure to advance
his S 212(c) claim earlier, but does not justify the failure.
Zayas had tried, albeit without success, to present the
issue to the BIA, so he was aware of the issue before he
filed his first habeas petitioning the Eastern District. And
Sandoval -- a case lending strong support to his S 212(c)
claim -- had been decided before Zayas’s second Eastern
District petition. To be sure, Zayas is not a lawyer and
hence not schooled in the niceties of abuse of the writ
doctrine. Nonetheless, the fact that appellant was not
represented by counsel when he filed his two Eastern
District petitions does not constitute "cause" -- or
demonstrate "prejudice" -- within the reach of McCleskey.
Further, appellant has made no showing "that a
fundamental miscarriage of justice would result from a
failure to entertain [his] claim." McCleskey, 499 U.S. at
495. We think AEDPA -- insofar as it "informs" our
consideration of Zayas’s claim -- does not point to a
different resolution.

                                18


Accordingly, we conclude that the District Court’s order
dismissing appellant Zayas’s habeas petition was proper
and should be affirmed.10

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

10. Because we conclude that the District Court correctly ruled that
appellant’s habeas petition was subject to dismissal for abuse of the
writ, we have no occasion to address the District Court’s alternate ruling
that the petition was also subject to dismissal for failure on appellant’s
part to exhaust his administrative remedies through a timely appeal to
the BIA.
                                19
