Successive 2241 Petitions Not Subject to AEDPA's Prior Authorization Requirement

Stanko v. Davis, ___ F.3d ___ , 2010 WL XXX, No. 09-1073 (10th Cir. 2010) (CO)
Habeas arcania. There are two kinds of federal habes–28 USC § 2241, the traditional habeas petition, and 28 USC § 2255–a motion to vacate etc. a sentence. The ability to file second or successive habeas actions is closely regulated. Under AEDPA, a state habeas § 2254 petitioner and a federal § 2255 “mover” must get circuit approval for filing a successive action. Without such authorization, the district court has no jurisdiction over the action.

Construing the language of AEDPA and the types of actions pursued under § 2241, the COA determined that the limiting AEDPA provision, § 2244(a), does not apply to the traditional § 2241 federal habeas petition. In this case, petitioner brought his action under 2241, claiming that the BOP wrongly denied him consideration for a reduced sentence if he completed a drug-treatment program. His claim was first denied in one federal district, and then when he was moved to Colorado, he brought the same general claim against the BOP in federal district court. Pre-AEDPA principles that govern determinations of whether subsequent habeas petitions under § 2241 will be considered “successive” governed this case. This was a successive abusive petition. Although the district court erred in dismissing the petition without notice to the petitioner, the error was harmless, because the COA allowed him to make his cause and prejudice showing on appeal (cause for not raising all claims in the first petition). He did not make that showing so the petition was correctly dismissed as successive.