Filed: Dec. 13, 2011
Latest Update: Feb. 22, 2020
Summary: FILED United States Court of Appeals Tenth Circuit December 13, 2011 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT ZENO EUGENE SIMS, Petitioner-Appellant, No. 11-3212 v. (D. of Kan.) CLAUDE CHESTER, (D.C. No. 5:09-CV-03082-RDR) Respondent-Appellee. ORDER AND JUDGEMENT * Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. ** Zeno Eugene Sims, a federal prisoner proceeding pro se, appeals from an order dismissing his 28 U.S.C. § 2241 habeas corpus petition. Ex
Summary: FILED United States Court of Appeals Tenth Circuit December 13, 2011 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT ZENO EUGENE SIMS, Petitioner-Appellant, No. 11-3212 v. (D. of Kan.) CLAUDE CHESTER, (D.C. No. 5:09-CV-03082-RDR) Respondent-Appellee. ORDER AND JUDGEMENT * Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. ** Zeno Eugene Sims, a federal prisoner proceeding pro se, appeals from an order dismissing his 28 U.S.C. § 2241 habeas corpus petition. Exe..
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FILED
United States Court of Appeals
Tenth Circuit
December 13, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ZENO EUGENE SIMS,
Petitioner-Appellant, No. 11-3212
v. (D. of Kan.)
CLAUDE CHESTER, (D.C. No. 5:09-CV-03082-RDR)
Respondent-Appellee.
ORDER AND JUDGEMENT *
Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **
Zeno Eugene Sims, a federal prisoner proceeding pro se, appeals from an
order dismissing his 28 U.S.C. § 2241 habeas corpus petition. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court’s order of
dismissal.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Sims is currently serving a 235-month federal sentence at United States
Prison-Leavenworth for the distribution of cocaine base. After he serves his
federal time he will be transferred to Jackson County, Missouri to serve a 30-year
state sentence for murder. The federal court held Sims’s federal sentencing
hearing two weeks before the state court held its sentencing hearing, and the
federal court stated that Sims’s federal sentence would run concurrently with the
state sentence which had not yet been imposed. The state court, however,
disagreed and imposed a consecutive sentence. When the Bureau of Prisons
(BOP) attempted to transfer Sims to state custody so that he could begin serving
the sentences concurrently, Missouri refused to take custody of Sims until he
completed his federal sentence.
Sims asks this court to issue a nunc pro tunc order to the BOP requiring it
to transfer him to the custody of Missouri so that he can serve his state sentence
concurrently with his federal sentence, in accordance with the federal court’s
order.
This is not the first time that Sims has made this request. In 2004 he filed
an essentially identical petition in the District of Louisiana, where the court
denied his petition on the merits. R., Vol. I, Doc. 8-2, Attachment 3, Ex. F at
265, Sims v. Tapia, No. 04-CV-0227-A (W.D. La. August 24, 2004). He has also
sought relief from the sentencing court, R., Vol. II, Doc. 8-3, Attachment 3 at
-2-
270–95, United States v. Sims, No. 2:01-cr-04030 (W.D. Mo.), and through an
administrative process before the BOP.
Sims filed this petition in the District of Kansas which dismissed his
petition as successive, finding he presented the same claims to the Western
District of Louisiana and that they were resolved on the merits.
“We review the district court’s dismissal of a § 2241 habeas petition de
novo.” Garza v. Davis,
596 F.3d 1198, 1203 (10th Cir. 2010) (internal quotation
marks omitted). Because Sims is proceeding pro se, we construe his pleadings
liberally. See Ledbetter v. City of Topeka,
318 F.3d 1183, 1187 (10th Cir. 2003).
Although “a federal inmate does not need prior circuit authorization to
pursue a second or successive habeas petition brought under § 2241,” the
provisions of § 2241 are subject to § 2244(a) and “the traditional doctrines
governing successive and abusive writs inform our application of that
subsection’s bar.” Stanko v. Davis,
617 F.3d 1262, 1272 (10th Cir. 2010). One
of these principles “authorize[s] a federal court to decline to consider a habeas
petition presenting a claim that was previously raised and adjudicated in an earlier
habeas proceeding, unless the court determined that hearing the claim would serve
the ends of justice.”
Id. at 1269.
Sims raises no new claims before us and makes no attempt to argue that the
earlier court proceeding did not provide him with a full and fair hearing on the
merits. The district court was correct to dismiss his petition as successive.
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Affirmed.
Entered for the Court,
Timothy M. Tymkovich
Circuit Judge
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