The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
The Petitioner, Jesse Sparks, Jr., filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241. The Magistrate
Judge's Report, filed June 28, 2005, recommends that the petition
be dismissed as a second or successive habeas petition.
Petitioner has filed one objection to the report arguing that in
deciding his previous petition, the District Court for the District of Columbia interpreted his claims to be against
the United States Sentencing Commission. Therefore, his current
petition cannot be considered to be a second or successive
petition because the Sentencing Commission did not have
jurisdiction over him.
We have read the district court's decision in Sparks v.
Gaines, 144 F.Supp.2d 9 (D.D.C. 2001). The Court clearly
interpreted Sparks' petition as challenging the actions of the
United States Parole Commission, not the Sentencing Commission.
The editorial note at the beginning of the case, which contains a
reference to the Sentencing Commission, is supplied by the
publisher and is not part of the court's opinion. We agree with
the Magistrate Judge that since Sparks' current claim could have
been raised in his original petition, we cannot consider the
merits of his current petition. However, in Zayas v. I.N.S.,
311 F.3d 247, 255 (3d Cir. 2002), the Third Circuit held that
28 U.S.C. § 2244(b) did not apply to petitions filed under § 2241.
As such, we cannot accept the portion of the Magistrate Judge's
report that relies upon § 2244(b). Our decision to dismiss
Spark's petition is based on the "abuse of the writ" doctrine as
Petitioner has offered no reason for his failure to include his
current claim in his previous petition. Benchoff v. Colleran,
404 F.3d 812, 816 (3d Cir. 2005) ("Under this doctrine, a
petition would be considered an abuse of the writ, inter alia,
where the subsequent petition raised a habeas claim which could have been
raised in an earlier petition and there was no legitimate excuse
for failure to do so.").
AND NOW, this 16th day of August, 2005, upon consideration of
the Report of the United States Magistrate Judge (doc. 3), dated
June 28, 2005, the objection thereto, and an independent review
of the Record, it is Ordered that the Magistrate Judge's
recommendation to dismiss the Petitioner's 28 U.S.C. § 2241
petition is adopted for the reasons set forth above. The petition
(doc. 1) is dismissed. The Clerk of Court shall close this file.
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