Smith v. Ashcroft

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30494
Summary Calendar
BOBBY BOSUN SMITH,
Petitioner-Appellant,
versus
JOHN ASHCROFT, U.S. Attorney General;
KEVIN D. ROONEY, ACTING COMMISSIONER,
IMMIGRATION AND NATURALIZATION SERVICE;
ANDREA QUARANTILLO, District Director,
Immigration and Naturalization Service;
CHRISTINE G. DAVIS, District Director,
Immigration and Naturalization Service;
IMMIGRATION AND NATURALIZATION SERVICE,
Respondents-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 01-CV-444
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October 31, 2001
Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Bobby Bosun Smith, federal prisoner # 18748-083, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition as an
abuse of the writ. Smith argues that the district court abused
its discretion in dismissing his habeas petition as the district
court did not address the merits of his prior habeas petitions.
*
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that this opinion should not be published and is not precedent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.
No. 01-30494
-2-
Contrary to Smith’s argument, the district court addressed the
merits of one of Smith’s prior habeas petitions in which he
raised exactly the same issues as those raised in this petition.
See Smith v. Reno, No. 2:99-CV-2157 (W.D. La. May 22, 2000).
Smith’s failure to raise a new ground for habeas relief in this
habeas petition constitutes an abuse of the writ. See United
States v. Tubwell, 37 F.3d 175, 178 (5th Cir. 1994).
Smith argues that the issue whether his habeas petition is
an abuse of the writ is moot in view of the Supreme Court’s
decision in INS v. St. Cyr, 121 S. Ct. 2271 (2001). In St. Cyr,
the Supreme Court held that habeas jurisdiction under 28 U.S.C.
§ 2241 was not repealed by the Antiterrorism and Effective Death
Penalty Act and Illegal Immigration Reform and Immigrant
Responsibility Act. Id. at 2286. The Supreme Court’s decision
in St Cyr did not change the law concerning abuse of the writ and
is inapplicable to the instant case. Smith’s motion to subpoena
records is DENIED.
AFFIRMED; MOTION TO SUBPOENA RECORDS DENIED.