Bias v. United States , 214 F. App'x 798 ( 2007 )

F IL E D
United States Court of Appeals
Tenth Circuit
U N IT E D ST A T E S C O U R T O F A PP E A L S
January 26, 2007
T E N T H C IR C U IT
Elisabeth A. Shumaker
Clerk of Court
RA NDALL B IAS ,
Petitioner - A ppellant ,
No. 06-6272
v. (D.C. No. CIV-06-248-R )
( W .D. Okla.)
U N ITED STA TES O F A M ER ICA ;
JOSEPH SCIBANA, W arden,
Respondents - Appellees .
O R D E R A N D JU D G M E N T *
Before K E L L Y , M cK A Y , and L U C E R O , Circuit Judges. * *
Petitioner-Appellant Randall L. Bias, a federal inmate appearing pro se,
seeks to appeal the district court’s order dismissing his 28 U.S.C. § 2241 petition.
See Bias v. United States, No. CIV-06-248-R, 2006 W L 1888884 (W .D. Okla.
July 7, 2006). The district court dismissed four of the five claims contained in
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
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.
the petition without prejudice for lack of jurisdiction (because they were actually
§ 2255 claims). The court dismissed the final claim, concerning the execution of
M r. Bias’s sentence, with prejudice. It is from that dismissal that M r. Bias
appeals. W e deny M r. Bias’s motion to proceed in forma pauperis (IFP) and
dismiss the appeal.
Background
On December 2, 1998, after the government had rested its case during a
jury trial, M r. Bias pled guilty to conspiracy to possess with intent to distribute
methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1) and possession
with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1).
As part of the plea agreement, the government agreed to recommend that M r. Bias
receive credit towards his federal sentence for the time he was incarcerated from
his arrest to his sentencing. M r. Bias was subsequently sentenced to a term of
168 months on each count, to be served concurrently. On appeal, we affirmed
M r. Bias’s sentence. See United States v. Bias, 201 F.3d 449 (Table), 1999 W L
1083749 (10th Cir. 1999).
The district court was subsequently notified by the Bureau of Prisons
(BOP) on November 28, 2000, that it would be unable to grant M r. Bias credit
towards his federal sentence for his pre-sentence incarceration because that time
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had been credited towards a separate California state sentence. See 18 U.S.C.
§ 3585(b). After administrative review, M r. Bias filed a 28 U.S.C. § 2255 motion
alleging that the government violated his plea agreement based on the B OP’s
failure to provide him with credit as recommended by the government and the
district court. The district court denied M r. Bias’s § 2255 motion because it was
untimely, but it also noted that the motion was without merit because the
government had recommended that M r. Bias receive credit and the plea agreement
specifically stated that the government’s recommendations were not binding. See
United States v. Bias, No. 02-3291, 2003 W L 22003091 (D . Kan. June 2, 2003).
M r. Bias did not appeal. M r. Bias filed the instant § 2241 petition on M ay 18,
2006.
Discussion
On appeal, M r. Bias challenges the district court’s determination that his
claim is successive and that he cannot make a claim of factual innocence because
he pled guilty. Under 28 U.S.C. § 2244(a), “a section 2241 petition which
presents no new grounds for relief is subject to dismissal as a successive petition
unless the ends of justice require consideration of the merits.” G eorge v. Perrill,
62 F.3d 333, 334 (10th Cir. 1995). The district court dismissed M r. Bias’s claim
with prejudice because the same claim was previously adjudicated and rejected by
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the sentencing court in the earlier § 2255 petition. To the extent that the district
court determined that M r. Bias failed to show cause and prejudice or a
fundamental miscarriage of justice, it was undoubtedly correct. See George, 62
F.3d at 335.
In order to proceed IFP, M r. Bias is required to demonstrate not only a
financial inability to pay the required fees, but also “a reasoned, nonfrivolous
argument on the law and facts in support of the issues raised on appeal.”
M cIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (internal
quotation marks omitted). This he has failed to do. The appeal is frivolous and
wholly without merit. W e therefore DENY his motion to proceed IFP and
DISM ISS the appeal. See 28 U.S.C. § 1915(e)(2)(B)(i).
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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