The opinion of the court was delivered by: A. Richard Caputo United States District Judge
Texroy Joseph Elliott, an inmate presently confined at the Allenwood United States Penitentiary, White Deer, Pennsylvania (USP-Allenwood), filed this pro se habeas corpus Petition pursuant to 28 U.S.C. § 2241. Originally named as Respondents are USPAllenwood Superintendent R. Martinez, the United States Department of Homeland Security and Attorney General Eric Holder.*fn1 Service of the Petition was previously ordered.*fn2
Elliott describes himself as being a native and citizen of Jamaica who entered the United States as a lawful permanent resident in 1988. See doc. 1 at 13. According to his Petition, Elliott was convicted of unlawful delivery of a controlled substance in the Dauphin County Court of Common Pleas on August 5, 1996. As a consequence, removal proceedings were initiated by the Department of Homeland Security, Immigration and Customs Enforcement ("ICE") on the grounds that Elliott had been convicted of an aggravated felony. On October 25, 2001, Petitioner was removed from the United States.
Petitioner was arrested and charged with illegal re-entry into the United States on June 29, 2004. See id. at 20-21. Following a 2005 jury trial before Judge Conner of this Court, he was convicted of that charge and sentenced to a 100 month term of incarceration. See United States v. Elliot, 179 Fed. Appx. 859, 860 (3d Cir. 2006).*fn3 His conviction was affirmed by the Court of Appeals for the Third Circuit. See id. at 861.
Elliott's pending petition claims entitlement to federal habeas corpus relief on the basis that his due process rights were violated during the 1999 removal proceedings. Specifically, Petitioner asserts that he was denied a final removal hearing. See id. at 10. In addition to arguing that his removal was improper, Elliott also challenges the legality of his subsequent 2005 federal conviction for illegal re-entry conviction on the grounds that it resulted from an illegal removal.
Discussion Second or Successive Petition
Respondent correctly points out that Petitioner previously asserted challenges to the legality of his 2005 federal conviction and his 1999 removal in an unsuccessful § 2241 petition filed with Judge Conaboy of this Court, Elliott v. Holder, et al., Civil No. 3:CV-10-56 (M.D. Pa. May 12, 2010). See doc. 9 at 1. However, unlike the arguments raised in his prior action, Petitioner's pending case seeks relief on the basis of a purported denial of a final removal hearing.
28 U.S.C. § 2244(a) and Rule 9(b)*fn4 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254 (1977), set forth the pertinent authority for determination as to whether second or successive § 2241 habeas corpus petitions may be reviewed by federal district courts. See Graham v. Warden, FCIAllenwood, 2009 WL 326010 *1 (3d Cir. Oct. 13, 2009)(§ 2244(a) bars second or successive challenges to the legality of detention including § 2241 petitions which challenge the execution of a federal sentence).
The Supreme Court in McCleskey v. Zant, 499 U.S. 467, 483 (1991) expanded § 2244 to also preclude a person from raising a new claim in a subsequent habeas petition that he could have raised in his first habeas petition:
Our most recent decisions confirm that a petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure to raise it earlier stemmed from a deliberate choice.
McCleskey, 499 U.S. at 489.
Elliott clearly filed a prior § 2241 action in this district court regarding the same removal proceeding and federal criminal prosecution which is the subject of his pending action. Although his pending matter includes arguments which were not included in his initial § 2441 action, Petitioner has not presented any substantive ...