F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
December 26, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DOUGLAS W . THOM PSON,
Petitioner-Appellant, No. 06-3237
v. (D.C. No. 05-CV-3358-RDR)
DUKE TERR ELL, W arden, USP- (D . Kan.)
Leavenworth; and D A N A D.
THOM PSO N, Acting Chairman,
M issouri Board of Probation and
Parole,
Respondents-Appellees.
OR DER *
Before KELLY, M cKA Y, and LUCERO, Circuit Judges.
After examining Petitioner’s brief and the record on appeal, 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.
Petitioner filed this 28 U.S.C. § 2241 petition in September 2005, seeking
relief from a detainer lodged against him by the State of M issouri. At the time
*
This order is not binding precedent except under the doctrines of law of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 (eff. Dec. 1, 2006) and 10th
Cir. R. 32.1 (eff. Jan. 1, 2007).
the petition was filed, Petitioner was serving a twenty-year federal sentence at the
United States Penitentiary in Leavenworth, Kansas. Before the district court had
made a ruling, however, Petitioner’s federal prison term expired, and he was
transferred to M issouri custody.
Petitioner first challenged the M issouri detainer in 1988. In his 1988
habeas petition, he argued that he w as entitled to complete release from M issouri
custody because the State had acted vindictively in imprisoning him and in failing
to conduct a timely parole revocation hearing; that M o. Ann. Stat. §
558.011.4(1)(c) should have been applied to mandate his release after five years
of parole; and that he deserved parole credit for the two years he served in prison
due to the State’s unlawful refusal to grant parole. See Thompson v. M o. Bd. of
Parole, 929 F.2d 396, 399-401 (8th Cir. 1991). The Eighth Circuit reversed the
district court’s denial of habeas relief, holding that Petitioner deserved parole
credit for the two years he was unlawfully incarcerated. Id. at 401. After
crediting the two years of prison time toward his parole, the circuit court found
that Petitioner had served five years on parole and, consequently, was eligible for
parole discharge consideration. Id. at 401-02. The circuit court specifically
noted, however, that its order did not entitle Petitioner to discharge from parole
but only required the M issouri parole board to consider him for parole discharge.
Id. at 401 n.12. The court held that Petitioner’s other claims, which asserted
various reasons w hy he was entitled to complete release, lacked merit.
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In the instant petition, Petitioner again argues that he is entitled to parole
discharge based either on the M issouri statute or on the vindictive and unlawful
actions of M issouri officials in imprisoning him and unlaw fully denying him
parole discharge. The district court denied the petition as an abuse of the writ. 1
Petitioner must obtain a certificate of appealability in order to challenge the
district court’s denial of his habeas petition. See Montez v. M cKinna, 208 F.3d
862, 867 n.6 (10th Cir. 2000). Because the district court denied his habeas
petition on procedural grounds, a certificate of appealability will issue only if he
can show that jurists of reason would find it debatable both “whether the petition
states a valid claim of the denial of a constitutional right” and “whether the
district court was correct in its procedural ruling.” Slack v. M cDaniel, 529 U.S.
473, 484 (2000). W e are allowed and encouraged to resolve the procedural issues
before addressing the constitutional questions. See id. at 485.
1
The district court did not consider Petitioner’s allegation, raised in his
traverse, that the M issouri parole board refused to hold a parole discharge hearing
as ordered by the Eighth Circuit. Petitioner now informs us that M issouri
conducted a parole hearing in September 2006, which makes this allegation moot.
See Shakur v. Wiley, 156 Fed. App’x 137 (11th Cir. 2005) (unpublished)
(agreeing with the district court’s conclusion that “any claim that [the petitioner]
did not receive [a parole eligibility] hearing is moot, as he received a parole
consideration hearing in 2002”). As to Petitioner’s assertion that the September
2006 parole hearing was conducted unlawfully and/or improperly, we do not
consider this allegation, which w as raised for the first time in Petitioner’s
supplemental briefs. This claim is not properly before us because— due to the
fact that the hearing had not yet occurred at the time of the district court’s
ruling— it w as not raised below. See W alker v. M ather (In re Walker), 959 F.2d
894, 896 (10th Cir. 1992).
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As an initial matter, we note that Petitioner’s claims against W arden Duke
Terrell are now moot. The only relief Petitioner could have obtained from
W arden Terrell was an injunction to prevent him from releasing Petitioner into
M issouri's custody. Now that this event has occurred, there is no effectual relief
he could obtain from W arden Terrell. See Church of Scientology of Cal. v. United
States, 506 U.S. 9, 12 (1992); Fredette v. Hemingway, 65 Fed. App’x 929, 931
(6th Cir. 2003) (unpublished) (prisoner’s petition for injunctive relief, seeking
prevention of his transfer from federal to state custody under a state detainer, was
moot due to the fact that he had already been transferred, rendering the court
unable to grant the relief requested). Because there is no reasonable expectation
that Petitioner will be subjected to this same action again, this is not the type of
claim to which an exception to the mootness doctrine applies. See Murphy v.
Hunt, 455 U.S. 478, 482 (1982); Fredette, 65 Fed. App’x at 931.
As to Petitioner’s claims that he is entitled to parole discharge based on the
state statute and/or on the prior vindictive actions of M issouri state officials,
these claims have been considered on the merits and resolved against Petitioner
by other federal courts, including the Eighth Circuit. W e note that the Eighth
Circuit did not hold that Petitioner was entitled to parole discharge, but only that
he was entitled to parole discharge consideration; this process was met. A habeas
court generally will not reach the merits of a successive claim, which raises
grounds identical to grounds raised and decided on the merits in a previous
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petition. Sanders v. United States, 373 U.S. 1, 15 (1963). W e agree with the
district court that nothing in the record supports a finding of cause and prejudice
or a fundamental miscarriage of justice, and thus that there is no reason the
district court should not have dismissed the claims as an abuse of the writ. See
George v. Perrill, 62 F.3d 333, 335 (10th Cir. 1995).
After reviewing Petitioner’s filings and the record on appeal, we conclude
that no reasonable jurist would find that Petitioner’s claims should not have been
dismissed on procedural grounds. Therefore, we DENY Petitioner’s request for a
certificate of appealability and DISM ISS the appeal. Petitioner’s motion to
expedite is DISM ISSED as moot.
Entered for the Court
M onroe G. M cKay
Circuit Judge
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