* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court generally

disfavors the citation of orders and judgments; nevertheless, an order and judgment may

be cited under the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P.34(a); 10th Cir. R. 34.1.9. The case therefore is ordered

submitted without oral argument.

UNITED STATES COURT OF APPEALS

Filed 9/27/96

TENTH CIRCUIT

 

DWAYNE EDWARD RASMUSSEN, )

)

Petitioner-Appellant, )

)

vs. ) No. 96-6176

) (CIV-96-217-T)

RON WARD, ) (W.D. Okla.)

)

Respondent-Appellee. )

 

ORDER AND JUDGMENT*

 

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.**

 

Petitioner Dwayne E. Rasmussen, appearing pro se and in forma pauperis, appeals

the district court’s order dismissing his Petition for a Writ of Mandamus filed pursuant to

the All Writs Act, 28 U.S.C. § 1651(a). Petitioner stands convicted in both federal and

state court of separate criminal acts. He presently is incarcerated in the Oklahoma State
1

 Rule 9(b) afforded the district court discretion to dismiss a successive petition

raising the same grounds for relief as a prior petition: “A second or successive petition

may be dismissed if the judge finds that it fails to allege new or different grounds for

relief and the prior determination was on the merits.” (emphasis added). That rule,

however, apparently has been altered by enactment of the Antiterrorism and Effective

Death Penalty Act of 1996, Pub. L. No. 104-132, tit. I, § 106 which states in relevant part: 

“A claim presented in a second or successive habeas corpus application under section

2254 that was presented in a prior application shall be dismissed.” (to be codified at 28

U.S.C. § 2244(b)(1) (emphasis added)). Because the district court exercised its discretion

to dismiss the Petition under Rule 9(b), the result would have been no different if the

court had applied the new act.

2

Penitentiary. Petitioner claims that because his federal court conviction preceded his state

court conviction, he must serve his federal sentence in the federal penitentiary before he

serves his state sentence in the state penitentiary. The district court construed Petitioner’s

claim as a request for a writ of habeas corpus under 28 U.S.C. § 2254 and dismissed it as

successive under Rule 9(b) of the Rules Governing § 2254 Cases.1 In the alternative, the

district court noted that even if construed as a Petition for a Writ of Mandamus, Petitioner

was not entitled to relief. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

We have reviewed Petitioner’s brief, pleadings, and the entire record before us,

and conclude the district court properly dismissed the Petition. Regardless of how we

construe the Petition, Petitioner is not entitled to relief. The law is well established that a

“person who has violated the criminal statutes of both the Federal and State Governments

may not complain of the order in which he is tried or punished for such offenses.” 

Gunton v. Squier, 185 F.2d 470 (9th Cir. 1950). Accord United States v. Hardesty, 977

F.2d 1347, 1348 (9th Cir. 1992) (en banc), cert. denied, 507 U.S. 978 (1993); Flick v.
3

Bevins, 887 F.2d 778, 781 (7th Cir. 1989), cert. denied, 495 U.S. 934 (1990); Causey v.

Civiletti, 621 F.2d 691, 694 (5th Cir. 1980).

AFFIRMED.

Entered for the Court

Bobby R. Baldock

Circuit Judge