This order and judgment is not binding precedent, except under the *

doctrines of law of the case, res judicata, and collateral estoppel. This 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 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.

F I LED

United States Court of Appeals

Tenth Circuit

June 29, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES EDWARD VERNER,

Petitioner - Appellant,

v.

ATTORNEY GENERAL; ROBERT

WILEY, Warden, United States

Penitentiary - Max, Florence,

Colorado,

Respondents - Appellees.

No. 06-1063

(D.C. No. 05-Z-2092)

(D. Colo.)

ORDER AND JUDGMENT

*

Before KELLY, MCKAY, and LUCERO, Circuit Judges.**

Petitioner James Edward Verner, a federal inmate appearing pro se, seeks

to appeal from the district court’s denial of his habeas corpus petition filed

pursuant to 28 U.S.C. § 2241. Mr. Verner claims that his consent to be

transferred from the Canadian prison system to the United States prison system
- 2 -

was ineffective. He argues the district court improperly dismissed his petition as

successive, by (1) usurping the government’s burden of pleading that this was a

successive petition by issuing an order to show cause rather than requiring the

government to respond, and (2) not considering the merits of his claims. The

district court denied Mr. Verner IFP status on appeal based on the absence of a

reasoned, non-frivolous argument, concluding that the appeal was not taken in

good faith. 28 U.S.C. § 1915(a)(3). 

Mr. Verner is a United States citizen serving three life sentences for murder

convictions in Canada. In 1990, Mr. Verner requested a transfer from Canada to

the United States. The magistrate judge who handled Mr. Verner’s request

repeatedly explained to Mr. Verner that as a result of the transfer, he would lose

the possibility of parole on one of his convictions. Mr. Verner consented. In

1996, the United States Parole Commission denied Mr. Verner’s application for

parole, and this court affirmed. Verner v. U.S. Parole Comm’n, 150 F.3d 1172

(10th Cir. 1998). 

In 1997, Mr. Verner filed a § 2241 petition challenging the underlying

sentences and his consent to be transferred. The district court dismissed the

petition and this court affirmed, finding that Mr. Verner’s consent to be

transferred was given voluntarily. Verner v. Reno, No. 98-1119, 1998 WL

792059, at *3 (10th Cir. Nov. 3, 1998). In this petition, Mr. Verner once again

argues that his consent to transfer was ineffective, and raises for the first time a
- 3 -

claim of actual innocence in support of his claim that a fundamental miscarriage

of justice will occur if this court does not consider his case on the merits. The

district court dismissed the petition as successive. See 28 U.S.C. § 2244(a);

George v. Perrill, 62 F.3d 333, 335 (10th Cir. 1995) (applying abuse of the writ

principles to § 2241 actions). 

A district court properly dismisses a § 2241 petition as successive if a

federal court has previously determined the validity of the petitioner’s detention

in a prior proceeding and no new claim is raised, or a new claim is raised that

could have been raised previously, and the petitioner fails to demonstrate cause

and prejudice or a fundamental miscarriage of justice. McCleskey v. Zant, 499

U.S. 467, 483-85 (1991); George, 62 F.3d at 335 (10th Cir. 1995). Provided the

inmate is given notice and the opportunity to respond (as occurred here), the

district court may raise the issue of successiveness sua sponte. United States v.

Barajas-Diaz, 313 F.3d 1242, 1246 (10th Cir. 2002) (district court could raise

procedural bar sua sponte, provided inmate given notice and an opportunity to

respond). 

The district court correctly determined that Mr. Verner’s petition was

successive because he raised an identical claim in a previous petition and the

court addressed the claim on its merits. Verner, 1998 WL 792059, at *3. To the

extent Mr. Verner did not previously raise his claim that duress invalidated his

consent, he has presented no reason to justify his failure to raise it in the previous
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action. Regardless, allegations of duress in a foreign prison would not support a

finding that the transfer was involuntary. See Boyden v. Bell, 631 F.2d 120, 123

(9th Cir. 1980). 

Mr. Verner, though he concedes he must bring any claim challenging the

validity of his conviction in a Canadian court, 18 U.S.C. § 3244(1), urges us to

consider his assertion of actual innocence in our fundamental miscarriage of

justice analysis. Because Mr. Verner does not challenge the validity of his

underlying conviction, a fundamental miscarriage of justice inquiry is not

appropriate. See Schlup v. Delo, 513 U.S. 298, 320-21 (1995) (“To ensure that

the fundamental miscarriage of justice exception would remain ‘rare’ and would

only be applied in the ‘extraordinary case,’ while at the same time ensuring that

the exception would extend relief to those who were truly deserving, this Court

explicitly tied the miscarriage of justice exception to the petitioner's innocence.”). 

Regardless, as the district court observed, Mr. Verner provides insufficient

support for his claim. The fact that a Canadian court overturned the convictions

of his co-defendants because of prosecutorial misconduct is not enough to support

an actual innocence claim. In any event, the convictions were overturned in

1992– well before Mr. Verner’s first 1997 habeas petition– and as such, that fact

is not “new.” See Schlup, 513 U.S. at 324 (requiring a petitioner to support

allegation of constitutional error with new reliable evidence).
- 5 -

Accordingly, we DENY the motion to proceed in forma pauperis and

DISMISS the appeal.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge