Stanko v. Davis

FILED
United States Court of Appeals
Tenth Circuit

August 10, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RUDY STANKO,

Petitioner-Appellant,

v. No. 09-1073

BLAKE DAVIS, Warden,
F.C.I. Englewood,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:08-CV-02615-ZLW)

Submitted on the briefs: *

Rudy Stanko, Pro Se.

David M. Gaouette, Acting United States Attorney, Michael C. Johnson, Assistant
United States Attorney, Denver, Colorado, for Respondent-Appellee.

Before MURPHY, McKAY, and BALDOCK, Circuit Judges.

MURPHY, Circuit Judge.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
 The district court dismissed as an abuse of the writ the habeas petition

Rudy Stanko brought under 28 U.S.C. § 2241 to challenge the execution of his

federal sentence. To resolve this appeal, we must determine whether a federal

inmate 1 who brings a second or successive habeas petition under 28 U.S.C. § 2241

must first obtain circuit court authorization to proceed and, if not, whether the

principles that governed successive and/or abusive writs before the enactment of

the Antiterrorism and Effective Death Penalty Act, Pub. L. 104-132, 110 Stat.

1214 (1996) (“AEDPA”), continue to apply to petitions brought under § 2241

post-AEDPA. We conclude that a federal prisoner does not need prior circuit

authorization to bring a second or successive § 2241 petition, that the pre-AEDPA

principles still apply to such petitions, and that the district court properly

dismissed Mr. Stanko’s petition, which was both successive and abusive.

I.

Mr. Stanko, who is serving a sentence for possession of a firearm after

conviction of a felony, brought the current habeas proceeding to challenge the

Bureau of Prison’s (“BOP”) determination that he is not eligible for a one-year

1
Throughout this opinion, we use the terms “federal inmate” and “federal
prisoner” to describe a person who is incarcerated “pursuant to a judgment of a
court of the United States,” as specified in 28 U.S.C. § 2244(a).

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reduction in his sentence under 18 U.S.C. § 3621(e)(2)(B). That statute provides

that “[t]he period a prisoner convicted of a nonviolent offense remains in custody

after successfully completing a [residential drug abuse] treatment program may be

reduced by the Bureau of Prisons, but such reduction may not be more than one

year from the term the prisoner must otherwise serve.” In April 2008, the BOP

determined that Mr. Stanko was not qualified to participate in a residential drug

abuse treatment program (RDAP), having previously determined that his

conviction for a firearms offense made him ineligible for a sentence reduction

under § 3621(e)(2)(B) in any event.

Nine months before filing the current proceeding in Colorado, Mr. Stanko

filed a similar proceeding in Minnesota, where he was then incarcerated. The

Minnesota district court ruled against Mr. Stanko, concluding that the BOP had

discretion under 18 U.S.C. § 3621(e) to deny a sentence reduction to inmates

convicted of firearms offenses under 18 U.S.C. § 922(g) and, therefore, that he

was not entitled to a sentence reduction regardless of whether he was enrolled in

an RDAP. Stanko v. Cruz, No. 08-cv-856, 2008 WL 4849025, at *3-4 (D. Minn.

Nov. 6, 2008), aff’d, No. 09-1132, 2010 WL 184046 (8th Cir. Jan. 21, 2010)

(per curiam).

In light of the Minnesota proceedings, the Colorado district court dismissed

Mr. Stanko’s petition sua sponte as an abuse of the writ. The court held that

regardless of whether Mr. Stanko’s claims were the same or merely similar to

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those he raised in the Minnesota action, his petition was abusive and he had

shown neither cause and prejudice nor a miscarriage of justice to warrant

considering his petition on the merits.

II.

Before a state or federal inmate, respectively, may file a second or

successive habeas petition under 28 U.S.C. § 2254 or a second or successive

motion to vacate, correct or set aside his sentence under 28 U.S.C. § 2255, the

inmate must obtain authorization from the circuit court to proceed, and that

authorization may only be given based on two very narrow grounds. 2

See 28 U.S.C. § 2244(b)(2), (3)(A) (§ 2254 petitions); § 2255(h) (§ 2255

motions). These are AEDPA’s “gatekeeping provisions.” If the inmate does not

obtain prior authorization, the federal district court has no jurisdiction to consider

2
AEDPA refers to “second or successive” habeas corpus applications under
§ 2254 and “second or successive” motions under § 2255, but does not define the
phrase “second or successive.” The Supreme Court has described the phrase as a
“term of art” and has held that it does not encompass all habeas petitions filed
second or successively in time. Magwood v. Patterson,130 S. Ct. 2788, 2796-97
(2010) (internal quotation marks omitted); see also Panetti v. Quarterman,
551 U.S. 930, 944 (2007).

AEDPA does not use the phrase “second or successive” in connection with
second or subsequent § 2241 petitions. Nonetheless, we use the phrase here to
describe a § 2241 petition like Mr. Stanko’s, which challenges the same BOP
decisions at issue in the earlier Minnesota proceedings and which raises claims
that either were or could have been raised in those earlier proceedings.

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his § 2254 petition or § 2255 motion. In re Cline, 531 F.3d 1249, 1251 (10th Cir.

2008). Mr. Stanko did not seek circuit court authorization before he filed his

§ 2241 petition in federal court in Colorado. If AEDPA required him to obtain

prior authorization, then the district court had no jurisdiction to consider his

petition.

The statutory limitations on a federal inmate’s ability to file multiple

§ 2241 petitions are contained in 28 U.S.C. § 2244(a). Following amendment by

AEDPA in 1996, § 2244(a) currently provides that

[n]o circuit or district judge shall be required to entertain an
application for a writ of habeas corpus to inquire into the detention
of a person pursuant to a judgment of a court of the United States if
it appears that the legality of such detention has been determined by
a judge or court of the United States on a prior application for a writ
of habeas corpus, except as provided in section 2255. [3]

In Ackerman v. Novak, 483 F.3d 647, 650 (10th Cir. 2007) (per curiam),

which involved a second or successive § 2241 petition by a military prisoner, we

said in dicta that

[t]he reference to § 2255 in the AEDPA-amended version of
§ 2244(a) appears to incorporate the appellate pre-authorization
gatekeeping requirements of § 2255 para. 8 [now § 2255(h)], which
sets forth the grounds upon which a circuit court may authorize a

3
As discussed infra pp. 14-15, the term “legality of detention” is so broad as
to potentially bar any § 2241 petition that follows an earlier habeas petition,
regardless of the grounds asserted in either petition. Section 2244(a) therefore
has the potential to bar even a § 2241 petition that would not be considered
“second or successive.” See discussion supra note 2.

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 second or successive § 2255 motion, and, in turn, incorporates the
pre-authorization procedures in § 2244(b)(3).

Id. at 650 (emphasis added). We did not decide whether § 2244(a) actually does

incorporate § 2255(h)’s pre-authorization requirement, however, because we

concluded that a military court is not “a court of the United States.” As a

consequence, § 2244(a) did not apply to the § 2241 petition before us, which

challenged a military court-martial conviction. Id.

We now conclude that the final clause of § 2244(a), i.e., “except as

provided in section 2255,” merely serves to clarify that the bar of § 2244(a) is not

meant to affect claims that are properly brought under § 2255. The clause’s

language dovetails with that of § 2255(e) requiring all federal inmates authorized

to apply for relief under § 2255 to use that remedy, rather than a habeas

application, unless the § 2255 remedy would be inadequate or ineffective. Were

we to interpret the clause to incorporate the provisions of § 2255, including the

gatekeeping provisions of § 2255(h), the result would be at odds with the overall

statutory scheme and its historical treatment.

First, the plain language of § 2255(h) applies only to § 2255 motions.

Subsection (h) states that “[a] second or successive motion must be certified as

provided in section 2244 by a panel of the appropriate court of appeals.” The

“motion” referred to must be the “motion to vacate, set aside or correct a

sentence” described in § 2255(a). See, e.g., Valona v. United States, 138 F.3d

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693, 694 (7th Cir. 1998). A habeas petition under § 2241 is not such a motion.

When Congress enacted §§ 2241-55 in 1948, it created two distinct

remedies. One was the traditional habeas remedy under § 2241, 4 as further

limited for state prisoners by § 2254. The other was a new remedy by motion

under § 2255 for federal prisoners. See United States v. Hayman, 342 U.S. 205,

210-19 (1952) (discussing traditional habeas remedy and creation of new remedy

under § 2255). By their plain language, the gatekeeping provisions of § 2255(h)

apply only to § 2255 motions, not to habeas corpus petitions. See Antonelli v.

Warden, U.S.P. Atlanta, 542 F.3d 1348, 1352, n.2 (11th Cir. 2008) (concluding

§ 2255(h) does not apply to a § 2241 petition because “§ 2255(h), by its terms,

applies only to a ‘second or successive motion’ – that is, a second or successive

motion to vacate a sentence under § 2255”); Valona, 138 F.3d at 694 (concluding

§ 2255’s gatekeeping provisions do not apply to § 2241 petitions).

Further, the gatekeeping standards set forth in § 2255(h) are tailored to

the types of claims properly brought in a § 2255 motion, but not to the typical

claim brought by a federal inmate in a § 2241 petition. To satisfy the gatekeeping

4
Section 2241 recodified, with modifications, the habeas remedy originally
granted by the Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 73, 81-82, and
expanded by the Habeas Corpus Act of 1867, ch. 28, § 1, 14 Stat. 385, 385.

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provisions of § 2255(h), the second or successive motion must present a claim

that is based on either

(1) newly discovered evidence that, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found
the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.

These grounds clearly relate to claims that challenge the validity of a conviction

or sentence, which are properly brought under § 2255.

In contrast, most proper § 2241 claims brought by federal inmates

challenge only the execution or administration of their sentences, see Bradshaw v.

Story, 86 F.3d 164, 166 (10th Cir. 1996), and § 2255(h)’s gatekeeping standards

bear little relation to such petitions.

Such petitions do not attack the conviction, and, hence, the assertion
of such claims do[es] not subject the petitioner’s conviction to
“collateral review.” They do not seek to establish his innocence, or
even to question the propriety of the finding of guilt. It is manifest
that in designing the standards under which a second or successive
petition would be allowed, Congress was contemplating only
petitions that challenged the lawfulness of the conviction . . . .

Vasquez v. Parrott, 318 F.3d 387, 391-92 (2d Cir. 2003) (concluding that

petitions challenging only execution of sentence should not be subject to AEDPA

gatekeeping provisions); see also Zayas v. I.N.S., 311 F.3d 247, 256 (3d Cir.

2002) (“In enacting AEDPA, Congress was focusing on the problem of repetitive

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habeas challenges to criminal convictions, state and federal. Congress did not

undertake to address the dissimilar categories of habeas petitions filed under

§ 2241 . . . .”); In re Cain, 137 F.3d 234, 235 (5th Cir. 1998) (noting that “section

2244–one of the gatekeeping provisions of the AEDPA–was enacted primarily to

preclude prisoners from repeatedly attacking the validity of their convictions”).

A typical § 2241 petition claiming that the BOP deprived the inmate of

good time credits without due process, for instance, would never satisfy the

gatekeeping standards.

By definition, a prisoner challenging the administration of his
sentence will not be relying on newly discovered evidence to show
that a “reasonable factfinder would [not] have found the applicant
guilty of the underlying offense.” Likewise, a petitioner . . . will
also be unable to show that his claim “relies on a new rule of
constitutional law,” because the due process principles governing
challenges to the procedures used to strip a prisoner of good-time
credits are well-established.

In re Cain, 137 F.3d at 236 (first alteration in original) (citations omitted). If the

breadth of § 2244(a)’s bar, see infra pp. 14-15, were defined by incorporation of

§ 2255, a first habeas petition challenging the deprivation of good time credits

would be barred, had the inmate previously challenged the “legality of his

detention” in some fashion in an earlier habeas proceeding. There is nothing in

the sparse legislative history accompanying AEDPA to suggest that Congress

intended to limit sentence-execution claims so dramatically. See H.R. Rep.

No. 104-518, at 111 (1996) (Conf. Rep.). Had Congress intended to create a

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gatekeeping mechanism in § 2244(a) like those it created in § 2255(h) and

§ 2244(b)(2), it could have included specific language to that effect, with

appropriately tailored standards, in § 2244(a).

Additionally, if the bar erected by § 2244(a) incorporated the gatekeeping

provisions of § 2255(h), federal inmates bringing §2241 petitions would

inexplicably be subject to far greater restrictions than would other types of

inmates who might bring § 2241 petitions. Subsection 2244(a), and thus its bar,

applies only to persons in custody “pursuant to a judgment of a court of the

United States.” But other types of petitioners may bring § 2241 habeas petitions,

such as alien detainees, military prisoners, pretrial detainees, and, in this circuit,

state prisoners challenging the execution of their sentence. See, e.g., Zadvydas v.

Davis, 533 U.S. 678, 687-88 (2001) (alien detainee); Ackerman, 483 F.3d at 650

(military prisoner); Walck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir. 2007)

(state pretrial detainee); Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000)

(state prisoner challenging execution of sentence). Because these petitioners are

not “in custody pursuant to a judgment of a court of the United States,” § 2244(a)

does not apply to them. See, e.g., Rosales-Garcia v. Holland, 322 F.3d 386, 399

(6th Cir. 2003) (en banc) (holding § 2244(a) does not apply to § 2241 petition by

alien detainee); Ackerman, 483 F.3d at 650 (holding § 2244(a) does not apply to

§ 2241 petition by military prisoner). There is no apparent reason why Congress

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would limit § 2241 petitions brought by federal prisoners much more stringently

than those brought by other prisoners, particularly other criminal prisoners.

Finally, were the gatekeeping provisions of § 2255(h) incorporated into

§ 2244(a), serious tension with § 2255 would result. Section 2255 gives a federal

inmate the right to bring a habeas petition when “the remedy by motion is

inadequate or ineffective to test the legality of his detention.” 28 U.S.C.

§ 2255(e). While claims rarely qualify for this escape hatch, occasionally some

do. See, e.g., Spaulding v. Taylor, 336 F.2d 192, 193 (10th Cir.1964) (holding

remedy by way of §2255 inadequate or ineffective where sentencing court had

since been abolished); Cohen v. United States, 593 F.2d 766, 771 n.12 (6th Cir.

1979) (stating in dicta that requiring defendant who was serving concurrent

sentences imposed by three different courts to bring separate § 2255 action in

each court, none of which could grant him complete relief, would represent “an

inadequate and ineffective avenue for judicial redress”). Should a claim under

§ 2241 premised on the inadequacy provision in § 2255(e), be subject to the

limitations of § 2255(h) by incorporation into § 2244(a), that claim would

arguably be barred notwithstanding the inadequacy of § 2255 “to test the legality

of . . . detention,” 28 U.S.C. § 2255(e). Cf. In re Hanserd, 123 F.3d 922, 30

(6th Cir. 1997) (noting final clause of § 2244(a) precludes court from interpreting

§ 2244(a) in fashion that would limit right conferred by § 2255(e)’s escape

hatch).

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 We therefore conclude that the phrase “except as provided in section 2255”

at the conclusion of § 2244(a) means exactly what it says: the provisions of

§ 2244(a) do not apply to claims that may be brought under § 2255. Accordingly,

Mr. Stanko was not required by § 2255(h) to obtain circuit authorization before

filing his § 2241 petition. 5

III.

Even though Mr. Stanko did not need circuit authorization to file his § 2241

petition in federal court in Colorado, his right to have his claims heard by that

court was limited by both the bar erected in § 2244(a) and the relevant case law.

Long before AEDPA, and even before the enactment of § 2244, the Supreme

Court developed several principles limiting the review of second or subsequent

habeas petitions. See McCleskey v. Zant, 499 U.S. 467, 479-88 (1991)

5
Nor did § 2244(b) require Mr. Stanko to obtain prior circuit authorization.
Subsection 2244(b)(3) provides that “[b]efore a second or successive habeas
application permitted by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order authorizing the district
court to consider the application.” Subsection 2244(b)(1) describes second or
successive applications that are not permitted, and § 2244(b)(2) describes those
that are. Both subsections concern only “habeas corpus application[s] under
section 2254.” 28 U.S.C. § 2244(b)(1), (2). Habeas petitions brought under
§ 2241 are not mentioned anywhere in § 2244(b). Accordingly, the requirement
for prior circuit authorization contained in § 2244(b)(3) does not apply to habeas
petitions brought under § 2241. See Antonelli, 542 F.3d at 1350; Zayas, 311 F.3d
at 255; Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000); Valona, 138 F.3d
at 694.

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(discussing development of principles). These principles underlie the statutory

bar in § 2244(a). 6

One principle authorized a federal court to decline to consider a habeas

petition presenting a claim that was previously raised and adjudicated in an earlier

habeas proceeding, 7 unless the court determined that hearing the claim would

serve the ends of justice. Id. at 480-82. When Congress enacted § 2244 in 1948,

it codified this principle.

Another principle, abuse of the writ, authorized a court to decline to hear a

second or subsequent habeas petition raising a claim that could have been

presented in an earlier petition but was not. Id. at 482-89. Neither the enactment

of § 2244 nor its subsequent amendment in 1966 codified this principle, because,

by its terms, the bar created in § 2244 8 did not apply to petitions presenting new

6
Our reliance on pre-AEDPA principles to interpret a provision in § 2244(a)
that predates AEDPA is not at odds with the Supreme Court’s recent opinion in
Magwood v. Patterson, which eschewed reliance on “pre-AEDPA precedents and
superceded statutory formulations” to interpret a provision applying to § 2254
petitions that was entirely new to AEDPA, 130 S. Ct. at 2799-800.
7
The Supreme Court referred to such a petition as a successive application.
Sanders v. United States, 373 U.S. 1, 9 (1963).
8
Section 2244 as enacted had no subsections. Those were created by
amendment in 1966, at which time the original provisions of § 2244 were
recodified in subsection (a).

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claims. 9 Nonetheless, the Supreme Court concluded that Congress did not intend

§ 2244 “to change the law as judicially evolved,” Sanders v. United States, 373

U.S. 1, 11-12 (1963). The Court therefore held that the abuse of the writ doctrine

continued to apply to habeas petitions that raised new grounds for relief. Id.;

accord McCleskey, 499 U.S. at 483-84; see also George v. Perrill, 62 F.3d 333,

335 (10th Cir. 1995) (affirming dismissal of second or successive § 2241 petition

for abuse of the writ).

When Congress amended § 2244(a) in 1996 as part of AEDPA, it removed

the provision that had previously excepted from the statutory bar petitions raising

new claims. In its current form, the plain language of § 2244(a) applies both to

petitions that present a claim previously raised and adjudicated 10 and those that

raise a new claim. As currently worded, § 2244(a) could be read to bar any

9
Following its amendment in 1966, § 2244(a) provided:

No circuit or district judge shall be required to entertain an
application for a writ of habeas corpus to inquire into the detention
of a person pursuant to a judgment of a court of the United States if
it appears that the legality of such detention has been determined by
a judge or court of the United States on a prior application for a writ
of habeas corpus and the petition presents no new ground not
theretofore presented and determined, and the judge or court is
satisfied that the ends of justice will not be served by such inquiry.

(Emphasis added.)
10
The amendment also eliminated the language that required a court to hear a
petition that raised claims previously raised and adjudicated when it would serve
the ends of justice.

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second or subsequent habeas petition that challenges “the legality of [the

petitioner’s] detention” if a court has previously determined that the detention

was legal. This could include claims that were raised but not adjudicated in a

previous petition and even those that could not have been raised in a previous

petition.

Historically, however, the Supreme Court has not given § 2244(a) such a

preclusive reading. When enacted, the Court interpreted § 2244 as merely

codifying the judicially-developed principle that a court could decline to hear a

claim that was both raised and adjudicated in an earlier petition. See Sanders,

373 U.S. at 11-12. The Court additionally barred new claims under the abuse of

the writ doctrine only when those claims could have been raised in an earlier

application but were not. See id. at 17-18; McCleskey, 499 U.S. at 489. When

Congress amended § 2244(a) in 1996 to remove the reference to new claims, it

did so against this legal landscape. There is no reason to think that Congress

intended to radically modify this landscape when it removed this reference.

Rather, it is more likely that, by removing the language that had made § 2244(a)’s

bar inapplicable to petitions raising new claims, Congress merely intended to

bring within the statutory bar new claims that historically would have been barred

as an abuse of the writ. We therefore consider the historical principles governing

successive and abusive writs in determining how to apply the § 2244(a) bar in this

case.

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 IV.

Mr. Stanko’s current habeas petition raises six claims for relief. Two of the

claims mirror those raised in the Minnesota action and two others assert the same

grounds as the earlier claims, though the legal underpinnings are slightly

different. In addressing the bar of successive and abusive writs, grounds may be

considered the same even when supported by different legal arguments. Sanders,

373 U.S. at 16. The district court did not err in dismissing these four claims

under § 2244(a).

Mr. Stanko’s two remaining claims appear to be new. They are that 1) the

BOP violated the Administrative Procedures Act (“APA”) by failing to provide a

comment and response period before promulgating 28 C.F.R.

§ 550.58[(a)(1)(vi)(B) (2000)], 11 which excludes all inmates convicted of offenses

involving the carrying, possession, or use of a firearm from eligibility for early

release under 18 U.S.C. § 3621(e); and 2) the BOP has not provided a rationale

for excluding non-violent inmates who have been convicted of possessing

sporting firearms.

Under the abuse of the writ doctrine, if a second or subsequent petition

raises a claim that could have been raised in an earlier petition, the petitioner

must establish that the omission was not the result of inexcusable neglect in order

11
This regulation now appears at 28 C.F.R. § 550.55(b)(5)(ii).

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to proceed on the new claim. McCleskey, 499 U.S. at 489. The same standards

that govern procedural default determinations govern inexcusable neglect

determinations: the petitioner must establish cause for his failure to raise the

claim in an earlier proceeding and resulting prejudice, id. at 493, or, in the

absence of cause, the petitioner must show that “a fundamental miscarriage of

justice would result from a failure to entertain the claim,” id. at 494-95.

Ordinarily, the government bears the initial burden of pleading abuse of the

writ. Id. at 494; see also Sanders, 373 U.S. at 11 (“[I]t would be unfair to compel

the habeas applicant, typically unlearned in the law and unable to procure legal

assistance in drafting his application, to plead an elaborate negative.”). In this

case, the district court did not give the government the opportunity to do so; the

court permitted the government to file only a limited response addressed to the

single issue of exhaustion, and it then dismissed the petition sua sponte. Other

courts have held that the district court may raise abuse of the writ sua sponte, so

long as it gives the petitioner notice and an opportunity to respond. E.g. Femia v.

United States, 47 F.3d 519, 522-23 (2d Cir. 1995); United States v. Fallon,

992 F.2d 212, 213 (8th Cir. 1993); Andre v. Guste, 850 F.2d 259, 261-62 (5th Cir.

1988). 12

12
This court allows procedural default to be raised sua sponte. E.g., United
States v. Talk, 158 F.3d 1064, 1067 (10th Cir. 1998) (holding court may raise
procedural default sua sponte “if doing so will further the interests of judicial
(continued...)

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 The district court here erred by not giving Mr. Stanko notice and an

opportunity to respond before dismissing his petition as abusive. In this

particular instance, however, we conclude that the district court’s error was

harmless. Mr. Stanko has now had an opportunity in this court to establish cause

and prejudice or a miscarriage of justice on appeal, and his showing has been

inadequate to establish either. The district court’s failure to give him an

opportunity to make his showing was, under the circumstances, harmless error.

Mr. Stanko’s two new claims are based on the Ninth Circuit’s opinion in

Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008), which held that the BOP

violated the APA when it promulgated its final rule implementing 18 U.S.C.

§ 3621(e). The Ninth Circuit concluded that the rule was arbitrary and capricious,

because the BOP did not adequately articulate a rationale for the rule’s

categorical exclusion of inmates with felony convictions for the carrying,

possession, or use of a firearm. Arrington, 516 F.3d at 1113-14.

Mr. Stanko contends that he had cause for not raising his two APA claims

in the Minnesota proceeding because he was unaware of the Ninth Circuit’s

decision in Arrington when he filed his habeas petition in Minnesota. “[T]he

12
(...continued)
efficiency, conservation of scarce judicial resources, and orderly and prompt
administration of justice” (internal quotation marks omitted)), abrogated on other
grounds, as recognized in United States v. Harms, 371 F.3d 1208, 1210 (10th Cir.
2004).

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cause standard requires the petitioner to show that some objective factor external

to the defense impeded [the petitioner’s] efforts to raise the claim” in the earlier

petition. McCleskey, 499 U.S. at 493 (internal quotation marks omitted).

Mr. Stanko does not allege that any external impediment prevented him from

discovering the grounds for relief he now raises or from including them in his

earlier petition. See Watson v. New Mexico, 45 F.3d 385, 388 (10th Cir. 1995)

(“[P]etitioner’s alleged lack of knowledge [of the procedural rules he should have

followed] must be due to a lack of reasonable access to the rules as distinguished

from basic ignorance of the rules or the law.”).

Cause also requires that a prisoner “conduct a reasonable and diligent

investigation aimed at including all relevant claims and grounds for relief in the

first federal habeas petition.” Id. at 498. The grounds upon which Mr. Stanko

relies were discoverable when he filed his earlier petition. Not only did the Ninth

Circuit issue its decision in Arrington more than a month before Mr. Stanko filed

his habeas petition in Minnesota, but for many years before that the Ninth Circuit

had been resolving similar challenges to the BOP’s initial and interim rules,

which were substantially the same as the final rule at issue in Arrington. See,

e.g., Paulsen v. Daniels, 413 F.3d 999 (9th Cir. 2005) (discussing ongoing dispute

and previous decisions). Mr. Stanko’s attempt to establish cause for his failure

to raise these claims in the Minnesota proceeding is unavailing, and he has not

even attempted to show that a refusal to hear his claims on the merits would

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result in a miscarriage of justice. Accordingly, his claims are subject to dismissal

as abusive.

V.

In sum, we conclude that a federal inmate does not need prior circuit

authorization to pursue a second or successive habeas petition brought under

§ 2241. Therefore, Mr. Stanko’s failure to obtain prior circuit authorization did

not deprive the district court of jurisdiction to consider his petition. We further

conclude that Mr. Stanko’s § 2241 petition was subject to § 2244(a), and that the

traditional doctrines governing successive and abusive writs inform our

application of that subsection’s bar. In accordance with those principles, we

conclude that Mr. Stanko’s petition was subject to dismissal under § 2244(a) as

both successive and abusive. Although the district court erred in not giving

Mr. Stanko notice and an opportunity to respond before dismissing his petition

sua sponte, the error was harmless because Mr. Stanko did have an opportunity on

appeal to establish either cause and prejudice or a miscarriage of justice and his

showing on both points was inadequate.

Mr. Stanko’s motion to proceed informa pauperis on appeal is GRANTED,

and the judgment of the district court is AFFIRMED.

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