UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GABRIEL GIBSON,

Petitioner-Appellant,

v.

J. KNOWLES, Warden; UNITED STATES PAROLE COMMISSION

Respondents-Appellees.	No. 98-1244

(D.C. No. 96-Z-2227)

(D. Colo.)

ORDER AND JUDGMENT*

Before BALDOCK, EBEL and MURPHY, Circuit Judges.

Petitioner-Appellant Gibson appeals the dismissal of his § 2241 petition for habeas corpus. Because Gibson's instant petition presents claims raised and decided in a prior § 2241 petition, we find it to be a successive petition. Accordingly, we dismiss. Moreover, because we hold that Gibson has failed to present a reasoned, nonfrivolous argument that his is not a successive petition, we deny his application to proceed in forma pauperis.

Background

On January 25, 1980, Gabriel Gibson was convicted in the United States District Court for the Southern District of Illinois of conspiracy, kidnaping and interstate transportation for immoral purposes. He was sentenced to a total of 40 years' imprisonment. On December 14, 1992, after a parole hearing, the National Commissioners ordered consideration of Gibson's parole continued for 15 years, until November 2007. The National Appeals Board affirmed.

On November 4, 1994, having exhausted his administrative appeals, Gibson filed a habeas corpus petition pursuant to 28 U.S.C. § 2241 in the Western District of Oklahoma challenging the decision to continue his parole consideration until 2007.1 The National Commissioners found the 15 year continuance warranted "because three victims were repeatedly raped after being kidnaped." In his prior § 2241 petition, Gibson contended that no "good cause" supported the decision to depart from the Parole Commission's parole guidelines as 18 U.S.C. § 4206(c) required. Specifically, Gibson claimed that "the reasons given for the Commission's decision are based on the 'assumption' that his offense behavior involved all three victims and do not provide specific reasons for the above-guidelines decision." (Magistrate Judge's Report and Recommendation, at 5 (Apr. 7, 1995).)

Discussion

Attempting to spin differently the same argument he raised in his earlier § 2241 petition, Gibson now claims that the Parole Commission relied on false information in finding "good cause" to depart from the parole guidelines. Gibson erroneously contends that he "was told by the Comm[ission] that he repeatedly raped three victims" based on the Commission's reliance on Gibson's Presentence Report.2 Gibson argues that evidence from the trial establishes that he raped and sodomized at most one of the victims. Even construing Gibson's pro se petition liberally, see George v. Perrill, 62 F.3d 333, 335 (10th Cir. 1995), we believe his present petition raises the same claim presented and denied in his previous § 2241 petition.

Before we reach the merits of Gibson's claims we must consider the threshold question of our jurisdiction. "Under 28 U.S.C. § 2244(a), which governs here, a section 2241 petition which presents no new grounds for relief is subject to dismissal as a successive petition unless the ends of justice require consideration of the merits." Id. at 334. Because Gibson's present petition presents no new grounds for relief and the ends of justice do not require consideration of the merits, we DISMISS.3 Petitioner's motion to proceed in forma pauperis is DENIED because petitioner failed to present a reasoned, nonfrivolous argument on the law and merits.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge