Verner v. Attorney General , 190 F. App'x 592 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 29, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JAM ES EDWA RD VERNER,
Petitioner - A ppellant,
No. 06-1063
v. (D.C. No. 05-Z-2092)
(D . Colo.)
ATTORNEY GENERAL; ROBERT
W ILEY, W arden, United States
Penitentiary - M ax, Florence,
Colorado,
Respondents - Appellees.
OR D ER AND JUDGM ENT *
Before KELLY, M C KA Y, and LUCERO, Circuit Judges. **
Petitioner James Edw ard Verner, a federal inmate appearing pro se, seeks
to appeal from the district court’s denial of his habeas corpus petition filed
pursuant to 28 U.S.C. § 2241. M r. Verner claims that his consent to be
transferred from the Canadian prison system to the United States prison system
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
was ineffective. He argues the district court improperly dismissed his petition as
successive, by (1) usurping the government’s burden of pleading that this was a
successive petition by issuing an order to show cause rather than requiring the
government to respond, and (2) not considering the merits of his claims. The
district court denied M r. Verner IFP status on appeal based on the absence of a
reasoned, non-frivolous argument, concluding that the appeal was not taken in
good faith. 28 U.S.C. § 1915(a)(3).
M r. Verner is a United States citizen serving three life sentences for murder
convictions in Canada. In 1990, M r. Verner requested a transfer from Canada to
the U nited States. The magistrate judge w ho handled M r. Verner’s request
repeatedly explained to M r. Verner that as a result of the transfer, he w ould lose
the possibility of parole on one of his convictions. M r. Verner consented. In
1996, the United States Parole Commission denied M r. Verner’s application for
parole, and this court affirmed. Verner v. U.S. Parole Comm’n, 150 F.3d 1172(10th Cir. 1998).
In 1997, M r. Verner filed a § 2241 petition challenging the underlying
sentences and his consent to be transferred. The district court dismissed the
petition and this court affirmed, finding that M r. Verner’s consent to be
transferred was given voluntarily. Verner v. Reno, No. 98-1119, 1998 W L
792059, at *3 (10th Cir. Nov. 3, 1998). In this petition, M r. Verner once again
argues that his consent to transfer was ineffective, and raises for the first time a
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claim of actual innocence in support of his claim that a fundamental miscarriage
of justice will occur if this court does not consider his case on the merits. The
district court dismissed the petition as successive. See 28 U.S.C. § 2244(a);
George v. Perrill, 62 F.3d 333, 335 (10th Cir. 1995) (applying abuse of the writ
principles to § 2241 actions).
A district court properly dismisses a § 2241 petition as successive if a
federal court has previously determined the validity of the petitioner’s detention
in a prior proceeding and no new claim is raised, or a new claim is raised that
could have been raised previously, and the petitioner fails to demonstrate cause
and prejudice or a fundamental miscarriage of justice. M cCleskey v. Zant, 499
U.S. 467, 483-85 (1991); George, 62 F.3d at 335 (10th Cir. 1995). Provided the
inmate is given notice and the opportunity to respond (as occurred here), the
district court may raise the issue of successiveness sua sponte. United States v.
Barajas-Diaz, 313 F.3d 1242, 1246 (10th Cir. 2002) (district court could raise
procedural bar sua sponte, provided inmate given notice and an opportunity to
respond).
The district court correctly determined that M r. Verner’s petition was
successive because he raised an identical claim in a previous petition and the
court addressed the claim on its merits. Verner, 1998 W L 792059, at *3. To the
extent M r. Verner did not previously raise his claim that duress invalidated his
consent, he has presented no reason to justify his failure to raise it in the previous
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action. Regardless, allegations of duress in a foreign prison would not support a
finding that the transfer was involuntary. See Boyden v. Bell, 631 F.2d 120, 123
(9th Cir. 1980).
M r. Verner, though he concedes he must bring any claim challenging the
validity of his conviction in a Canadian court, 18 U.S.C. § 3244(1), urges us to
consider his assertion of actual innocence in our fundamental miscarriage of
justice analysis. Because M r. Verner does not challenge the validity of his
underlying conviction, a fundamental miscarriage of justice inquiry is not
appropriate. See Schlup v. Delo, 513 U.S. 298, 320-21 (1995) (“To ensure that
the fundamental miscarriage of justice exception would remain ‘rare’ and would
only be applied in the ‘extraordinary case,’ while at the same time ensuring that
the exception would extend relief to those w ho were truly deserving, this Court
explicitly tied the miscarriage of justice exception to the petitioner's innocence.”).
Regardless, as the district court observed, M r. Verner provides insufficient
support for his claim. The fact that a Canadian court overturned the convictions
of his co-defendants because of prosecutorial misconduct is not enough to support
an actual innocence claim. In any event, the convictions w ere overturned in
1992– well before M r. Verner’s first 1997 habeas petition– and as such, that fact
is not “new.” See Schlup, 513 U.S. at 324 (requiring a petitioner to support
allegation of constitutional error w ith new reliable evidence).
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Accordingly, we DENY the motion to proceed in forma pauperis and
DISM ISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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