The opinion of the court was delivered by: (Judge Conaboy)
Background This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 was filed on behalf of Juan Victor Valles, an inmate presently confined at the United States Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg). The Petition is signed by USPLewisburg inmate Jose Cristobal Cardona. 28 U.S.C. § 2242 permits the filing of a habeas corpus petition by someone acting on behalf of the Petitioner.*fn1
Petitioner has also filed a request for leave to proceed in forma pauperis as well as a motion seeking appointment of counsel. See Docs. 3 & 4. Named as Respondent is USP-Lewisburg Warden J. E. Thomas. For the reasons outlined below, Petitioner will be granted leave to proceed in forma pauperis for the sole purpose of the filing of this matter, however, his petition will be dismissed as a second or successive petition.*fn2
Petitioner's pending action does not challenge the legality of his federal criminal conviction or the resulting sentence. Rather, the Petition initally contends that Valles is being "illegally restrained in his liberty." Doc. 1, ¶ I. He claims entitlement to federal habeas corpus relief regarding his "placement in the USPLewisburg "Special Management Unit (SMU)." Id. at ¶ II. The petition further contends that due to his refusal to participate in the reconditioning aspect of his SMU program, Valles faces a "potential stripping of his good time credits." Id. at ¶ III.
On May 24, 2012, Inmate Cardona filed a similar, at most times identical § 2241 action on behalf of Valles with this Court. See Valles v. Thompson Civil No. 3:12-CV-978.*fn3 Both actions vaguely assert that Petitioner potentially faces a loss of good time credits for refusing to participate in recommended SMU programming. By Memorandum and Order dated June 19, 2012, Petitioner's initially filed action was dismissed without prejudice and Valles was advised that he could reassert his claims in a properly filed civil rights action.
Section 2241 petitions are subject to judicial screening pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254 (1977). See Patton v. Fenton, 491 F. Supp. 156, 158-59 (M.D. Pa. 1979) (the Rules Governing Section 2254 Cases in the United States District Courts are applicable to § 2241 petitions under Rule 1(b) of the Section 2254 Rules.); Mutope v. Pennsylvania Board of Probation and Parole, Civil No. 3:CV-07-472, 2007 WL 846559, at *2 (M.D. Pa. Mar. 19, 2007)(Kosik, J.). Rule 4 states in relevant part that "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner."
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 habeas
corpus petitions may be reviewed by federal district courts.*fn5
See Graham v. Warden, FCI-Allenwood, 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.
Following the 1996 amendments, Section 2244 now provides in relevant part:
(a) No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United states if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255.
(B)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented ina ...