Davidson v. US Dept of Justice ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 00-30279
Summary Calendar
_____________________
EDWARD W. DAVIDSON,
Plaintiff-Appellant,
versus
UNITED STATES DEPARTMENT OF JUSTICE;
JANET RENO; JAMES B. TUCKER;
JOHN R. SIMPSON; KATHLEEN M. HAWK,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(99-CV-447)
_________________________________________________________________
November 15, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Edward W. Davidson, federal prisoner # 87586-024, is serving
two concurrent life sentences pursuant to a 1981 federal guilty-
plea conviction for conspiracy to kidnap and a 1981 state
(Mississippi) guilty-plea conviction for murder. (Davidson has
moved for leave to supplement the record on appeal. Because the
materials at issue were not considered by the district court, the
motion is DENIED. See United States v. Flores, 887 F.2d 543, 546
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
(5th Cir. 1989).)
Davidson appeals, pro se, the dismissal of his 28 U.S.C. §
2241 habeas petition as successive to his 7 September 1995, 28
U.S.C. § 2241 habeas petition. Both petitions challenged his
parole proceedings.
Pursuant to 28 U.S.C. § 2244(a), a district judge is not
required to entertain a habeas application inquiring into a
person’s detention pursuant to a United States court judgment if it
appears that the legality of such detention has been determined by
a United States court on a prior application for a habeas writ.
Interpreting a prior, but substantially similar, version of this
statute, our court held that 28 U.S.C. § 2244(a) applied to 28
U.S.C. § 2241 habeas petitions. See United States v. Tubwell, 37
F.3d 175, 178 (5th Cir. 1994). Our court has not yet determined,
however, whether the gate-keeping provisions of 28 U.S.C. §
2244(b), which require certification by a court of appeals before
a successive application may be filed in the district court, apply
to 28 U.S.C. § 2241 petitions. See Davis v. Fechtel, 150 F.3d 486,
490-91 (5th Cir. 1998). That issue need not be resolved in this
case, because, even if it were decided in Davidson’s favor and he
was not subjected to such gate-keeping requirements, there would be
no reversible error arising from the district court’s discretionary
dismissal of his case as successive under 28 U.S.C. § 2244(a).
Restated, the district court did not abuse its discretion in
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dismissing, under 28 U.S.C. § 2244(a), Davidson’s instant § 2241
petition as successive. See McGary v. Scott, 27 F.3d 181, 183 (5th
Cir. 1994). Davidson has failed to identify any erroneous legal
conclusion or clearly erroneous factual finding by the district
court. See id. Moreover, the jurisprudence interpreting the prior
version of 28 U.S.C. § 2244(a) supports the dismissal of Davidson’s
petition, because he has not shown: (1) cause for failing to raise
in his 1995 petition any new claims arguably raised by his instant
petition and prejudice arising from the asserted errors; or (2)
that refusal to hear his claims will result in a fundamental
miscarriage of justice. See Tubwell, 37 F.3d at 178; McCleskey v.
Zant, 499 U.S. 467, 494-95 (1991).
MOTION DENIED; JUDGMENT AFFIRMED.
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