Judge Caputo also found that the Middle District petition raised procedural due process questions and was therefore subject to dismissal for failure to exhaust administrative remedies.

The dismissal of Zayas's Middle District petition has given rise to the current appeal.

Until a decade ago, the legal principles comprising the doctrine of abuse of the writ were a somewhat amorphous melange of statutes and case law, and administration of the doctrine was primarily committed "to the sound discretion of the federal trial judges." Sanders v. United States, 373 U.S. 1, 18, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). In 1991 — as we point out infra, in part III of this opinion — the doctrine of abuse of the writ underwent a sea-change: in McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991), the Supreme Court reformulated the doctrine, "replac[ing] the nebulous and discretionary `ends of justice' standard with the more concretely defined cause and prejudice standard borrowed from procedural default law," a standard that "is an objective one which `clarifies the imprecise contours' of the test that the district courts are to apply." Macklin v. Singletary, 24 F.3d 1307, 1312 (1994). The McCleskey reformulation led the Eleventh Circuit, in Macklin, to reexamine at some length the appropriate standard of appellate review of district court decisions relating to claims of abuse of the writ. The Eleventh Circuit, in an opinion by Judge Carnes, concluded that: "In this post-McCleskey era, the abuse of the writ doctrine presents objective, threshold questions involving the application of law to facts. We review district court rulings on such issues not under an abuse of discretion standard, but de novo." 24 F.3d at 1313.

We agree with Judge Carnes's thoughtful analysis.

28 U.S.C. § 2241 — the "primary federal habeas corpus statute,"6 Zadvydas v. Davis, 533 U.S. 678, 687, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001) — is the vehicle by which an alien who is in custody may seek judicial review of INS actions that affect the alien's status. INS v. St. Cyr, 533 U.S. 289, 308, 314, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001); Chmakov v. Blackman, 266 F.3d 210, 213 (3d Cir.2001); Liang v. INS, 206 F.3d 308, 320-21 (3d Cir.2000).

In Zayas's Middle District § 2241 petition, he sought to present the argument that, because his immigration case was already pending as of the passage of AEDPA, his eligibility for § 212(c) relief was not affected by AEDPA. Said Zayas: "[T]he retroactivity and the restrictions of the [AEDPA] is no longer permitted to proceedings before its enactment...." [citing cases, including Sandoval v. Reno, 166 F.3d 225 (3d Cir.1999)]. This argument is an elaboration of the argument Zayas attempted to present to the BIA in the pro se appeal rejected as untimely; however, the argument was not mentioned in either of the two Eastern District petitions for habeas corpus. That it went unmentioned in the second Eastern District petition is notable because the second petition was filed five months after this court's decision in Sandoval v. Reno. In Sandoval, we held that AEDPA § 440(d), which had the effect of amending § 212(c) to bar persons convicted of drug offenses from discretionary relief, was not applicable to cases pending on the date of the statute's enactment. 166 F.3d at 239-42; cf. St. Cyr, 533 U.S. at 314-26, 121 S. Ct. 2271.

Although the government in this case has accepted the ruling of Sandoval with respect to the retroactivity issue, the merits of Zayas's argument concerning the availability of § 212(c) relief from his deportation order are not under consideration; at issue is Zayas's entitlement to make the argument in his Middle District petition for habeas corpus.

Since Zayas has previously filed two habeas petitions in the Eastern District that have not presented the § 212(c) issue, the government contends that the District Court was correct in dismissing the habeas petition filed in the Middle District. In the District Court, the government relied on (1) 28 U.S.C. § 2244(b), the AEDPA gatekeeping mechanism that requires one who seeks to file a "second or successive" petition in a district court under § 2254 to first obtain the permission of the court of appeals, and, (2) in the alternative, the pre-AEDPA "abuse of the writ" case law embodied in McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991). In this court, the government has refrained from contesting Judge Caputo's conclusion that the § 2244(b) gatekeeping regime does not govern habeas petitions filed under § 2241.7 But the government supports Judge Caputo's further conclusion — challenged by Zayas — that McCleskey's "abuse of the writ" jurisprudence is applicable to, and operates to bar, Zayas's petition.

To understand what Congress, in 1996, sought to do in enacting § 2244(b), one must start with McCleskey, decided five years before. In McCleskey, the Supreme Court comprehensively addressed the problem of "abuse of the writ" presented by sequential habeas filings. The Court undertook to analyze, and to integrate into a systematic whole, the then-existing habeas statutes and rules and the Court's own principal prior case discussions of abuse of the writ. The Court announced the following formulation:

When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner's prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner's. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions. The petitioner's opportunity to meet the burden of cause and prejudice will not include an evidentiary hearing if the district court determines as a matter of law that petitioner cannot satisfy the standard. If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim.

499 U.S. at 494-95, 111 S. Ct. 1454.

In 1996, in AEDPA, Congress, concerned that successive habeas petitions filed in federal district courts still seemed to frustrate finality in the criminal process, amended § 2244 so as to impose tighter constraints than McCleskey's on habeas petitioners invoking § 2254 to present collateral challenges to state criminal convictions. Under § 2244(b) as amended, (1) "[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed," § 2244(b)(1), and (2) a "second or successive habeas corpus application under section 2254" presenting a claim not asserted in a prior habeas petition is subject to dismissal by the district court, § 2244(b)(2), unless the proposed petition has been submitted to, and found acceptable by, the court of appeals, § 2244(b)(3). A court of appeals's permission to file is in turn dependent on the petitioner's making a prima facie showing that the petition is keyed to (1) a new rule of constitutional law announced, and stated to be retroactive, by the Supreme Court, § 2244(b)(2)(A), or (2) newly discovered facts which, "if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense," § 2254(b)(2)(B)(ii). Concurrently with amending § 2244(b) to affect petitioners challenging state convictions, Congress, in AEDPA, amended § 2255 to impose substantially identical constraints on "second or successive" habeas petitions challenging federal convictions.

With this history in mind, we now address Judge Caputo's rulings that (1) the gatekeeping regime of S 2244(b) is inapplicable to Zayas's Middle District S 2241 petition, but (2) Zayas's petition is, nonetheless, barred because its filing constitutes abuse of the writ within the rubric of McCleskey.

A. Is the gatekeeping regime of § 2244(b) applicable to habeas petitions filed under § 2241?

To determine whether the § 2244(b) gatekeeping regime is applicable to habeas petitions filed under § 2241, the proper point of departure is the statutory text, which has been excerpted supra. The pertinent provisions of § 2244(b) refer to "a second or successive habeas corpus application under section 2254." § 2244(b)(1) and § 2244(b)(2). The statutory text does not in terms govern petitions under § 2241.

The two circuit courts that have considered the issue have concluded that the text is to be construed as written. In Valona v. United States, Judge Easterbrook, for the Seventh Circuit, put the matter this way:

Section 2244, which establishes the prior-appellate-approval mechanism for second or successive collateral attacks, requires permission before "a second or successive habeas corpus application under section 2254" (§ 2244(b)(1), (2)) may be commenced. We know from Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996), that the statutory cross-reference must be taken seriously. Section 2244 refers to § 2254 but not § 2241, and Felker holds that the prior-approval mechanism therefore does not apply to petitions under § 2241. Section 2255 ¶ 8 requires appellate approval for second or successive petitions under § 2255 as well as § 2254 but does not add § 2241 to the list of covered sections.

138 F.3d 693, 694 (7th Cir.1998). Similarly, in Barapind v. Reno, Judge Thomas, for the Ninth Circuit, wrote as follows:

In large part, AEDPA codified the abuse of the writ doctrine and created a "gatekeeping" mechanism restricting the filing of second or successive habeas applications in district court.

However, the gatekeeping provisions of AEDPA, as set forth in 28 U.S.C. § 2244, do not apply to all habeas petitions, nor are all multiple collateral attacks "second or successive." First, the prior-appellate-review mechanism set forth in § 2244(b) requires the permission of the court of appeals before "a second or successive habeas corpus application under section 2254" may be commenced. Because § 2244(b) makes no reference to habeas petitions filed under § 2241, but rather, applies only to petitions filed pursuant to 28 U.S.C. § 2254, the prior-appellate-review provisions of § 2244(b) do not apply to habeas petitions filed under § 2241.

225 F.3d 1100, 1111 (9th Cir.2000) (footnote and citations omitted).

We agree, as did Judge Caputo, with the Seventh and Ninth Circuits. We therefore hold that Zayas's § 2241 petition was not subject to the gatekeeping regime of § 2244(b).8

B. Is Zayas's § 2241 habeas petition barred as an abuse of the writ?

Having determined that the gatekeeping regime of § 2244(b) is inapplicable to a "second or successive" § 2241 habeas petition, we turn now to the question whether, as Judge Caputo ruled, a "second or successive" § 2241 habeas petition must, nonetheless, be dismissed if its filing constitutes abuse of the writ.

Zayas argues that Judge Caputo's analysis was flawed. According to Zayas, "[t]he district court's analysis of this issue is cyclical because a second or successive petition and abuse of the writ are, in essence, identical doctrines. Thus, after the district court determines that Zayas' habeas petition is not a second or successive petition under AEDPA, there is no reason to apply the McCleskey abuse of the writ analysis as AEDPA codified this doctrine in 28 U.S.C. § 2244."

We think the argument mistakes the scope of the AEDPA habeas amendments. The gatekeeping mechanism created by Congress was not put in place for all habeas petitioners. The § 2244(b) structure was, as we have explained above, specifically addressed to second or successive petitions filed pursuant to § 2254, i.e., petitions filed by state prisoners collaterally challenging their convictions on federal constitutional grounds. As the Supreme Court noted in Felker v. Turpin, in which it was considering the extent to which the § 2244(b) gatekeeping regime affected its own authority to entertain original habeas applications under §§ 2241 and 2254, "[t]he provisions of the Act pertinent to this case concern second or successive habeas corpus applications by state prisoners." 518 U.S. 651, 656, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996). Similarly, AEDPA's amendment of § 2255 put a gatekeeping regime in place for federal prisoners filing second or successive § 2255 habeas petitions collaterally challenging federal convictions. Valona, 138 F.3d at 694. In enacting AEDPA, Congress was focusing on the problem of repetitive habeas challenges to criminal convictions, state and federal. Congress did not undertake to address the dissimilar categories of habeas petitions filed under § 2241 — which, as noted above, is the "primary federal habeas corpus statute,"9 Zadvydas v. Davis, 533 U.S. at 687, 121 S. Ct. 2491 — embracing, for example, applications challenging the manner in which a valid federal sentence is carried out, Chambers, 106 F.3d at 475, or applications, like Zayas's, challenging INS rulings.

Nor is it the case that the AEDPA gatekeeping regime simply put in statutory form what McCleskey had already defined as abuse of the writ. "In large part, AEDPA codified the abuse of the writ doctrine," Barapind, 225 F.3d at 1111, but, for the categories of habeas petitions that it directly addressed, it went further. As the Court explained in Felker v. Turpin:

The Act ... codifies some of the pre-existing limits on successive petitions, and further restricts the availability of relief to habeas petitioners....

The new restrictions on successive petitions constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice "abuse of the writ." In McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991), we said that "the doctrine of abuse of the writ refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions." Id., at 489, 111 S. Ct. 1454. The added restrictions which the Act places on second habeas petitions are well within the compass of this evolutionary process....

518 U.S. at 664, 116 S. Ct. 2333.

In short, AEDPA dealt with habeas petitions under § 2254 and § 2255 by building on McCleskey rather than supplanting it. Moreover, the Supreme Court has made it clear that, even with respect to abuse of the writ scenarios not governed in terms by AEDPA, its provisions "certainly inform [judicial] consideration." Calderon v. Thompson, 523 U.S. 538, 558, 118 S. Ct. 1489, 140 L. Ed. 2d 728 (1998) (quoting Felker, 518 U.S. at 663, 116 S. Ct. 2333). See also In re Dorsainvil, 119 F.3d 245, 251 (3rd Cir.1997). Accordingly, while agreeing with Judge Caputo that Zayas's habeas petition — a § 2241 petition not governed by AEDPA — "should be considered in the context of McCleskey," we would add the caveat that application of McCleskey to Zayas's petition should be expected to yield a resolution in harmony with AEDPA.

Judge Caputo applied McCleskey to Zayas's petition as follows (citations omitted):

In this case, Petitioner filed two prior petitions for habeas corpus relief with the Eastern District of Pennsylvania arguing that his detention was unlawful under 8 U.S.C. § 1252(c). The district court determined that Petitioner's detention was not unlawful and denied Petitioner's request for relief on the merits. Petitioner now asks for habeas relief in a third petition stating that the restrictions of the AEDPA should not have been retroactively applied. He argues that he will be able to show that he satisfies the requirements under § 212(c) for eligibility if granted the opportunity. Respondent has provided evidence that Petitioner had originally included this argument in his appeal to the BIA and certainly had the opportunity to raise the issue in his first habeas petition. Petitioner has not provided any explanation as to his reasons for failing to raise such issue with the district court in his first habeas petition. Petitioner has failed to show any cause, prejudice or a fundamental miscarriage of justice for failing to include that argument in his first petition. Therefore, Petitioner's petition for writ of habeas corpus will be dismissed not as a second or successive petition but for abuse of the writ.

In his brief on appeal, Zayas argues as follows:

Clearly it would have been preferable for Zayas to have raised both the indefinite detention and retroactive application of AEDPA's version of § 212(c) in his first habeas petition. However, he did not do so because at the time he filed his first habeas petition he was most concerned with his indefinite detention and ultimate release from incarceration. As a pro se litigant, he did not realize that the abuse of the writ doctrine or the prohibition against second or successive petitions even existed. His primary concern was his release from incarceration. Once that request was denied, he accepted that he would remain incarcerated and began to focus on the issues that would enable him to remain in the United States with his family.

The argument seeks to explain Zayas's failure to advance his § 212(c) claim earlier, but does not justify the failure. Zayas had tried, albeit without success, to present the issue to the BIA, so he was aware of the issue before he filed his first habeas petitioning the Eastern District. And Sandoval — a case lending strong support to his § 212(c) claim — had been decided before Zayas's second Eastern District petition. To be sure, Zayas is not a lawyer and hence not schooled in the niceties of abuse of the writ doctrine. Nonetheless, the fact that appellant was not represented by counsel when he filed his two Eastern District petitions does not constitute "cause" — or demonstrate "prejudice" — within the reach of McCleskey. Further, appellant has made no showing "that a fundamental miscarriage of justice would result from a failure to entertain [his] claim." McCleskey, 499 U.S. at 495, 111 S. Ct. 1454. We think AEDPA — insofar as it "informs" our consideration of Zayas's claim — does not point to a different resolution.

Accordingly, we conclude that the District Court's order dismissing appellant Zayas's habeas petition was proper and should be affirmed.10