* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument. This Order and Judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court g enerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 14 1999 

### PATRICK FISHER Clerk 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 o f his § 2241 petition for habeas corpus. Because Gibson’s instant petition p resents claims raised and decided in a prior § 2241 petition, we find it to b e a successive petition. Accordingly, we dismiss. Moreover, because we holdthat Gibson has failed to1 While not pertinent to the present appeal, we note that Gibson has filed

numerous other direct and collateral appeals in the federal courts. - 2 - 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 i n the United States District Court for the Southern District of Illinoi s of conspiracy, kidnaping and interstate transportation for immoral purposes. He was sentenced to a total of 40 years’ imprisonment. On December 14, 1992, after aparole hearing, the National Commissioners ordered consideration of Gibson’s par ole continued for 15 years, until November 2007. The National Appeals Board af firmed. On November 4, 1994, having exhausted his administr ative appeals, Gibson filed a habeas corpus petition pursuant to 28 U.S.C . § 2241 in the Western District of Oklahoma challenging the decision to co ntinue his parole consideration until 2007. 1 The National Commissioners found the 15 year continuance warranted “because three victims were r epeatedly raped after being kidnaped.” In his prior § 2241 petition, Gibson co ntended that no “good cause” supported the decision to depart from the Parole Co mmission’s parole guidelines as 18 U.S.C. § 4206(c) required. Specifically, Gib son claimed that “the reasons2 In fact, the Parole Commission stated that “a decis ion above the guidelines

appears warranted because three victims were repeat edly raped after being kidnaped.” - 3 - given for the Commission’s decision are based on th e ‘assumption’ that his offense behavior involved all three victims and do not provide specific reasons for the above-guidelines decision.” (Magistrate Ju dge’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 Co mmission 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 reli ance on Gibson’s Presentence Report. 2 Gibson argues that evidence from the trial establ ishes that he raped and sodomized at most one of the victims. Even constru ing 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 an d denied in his previous § 2241 petition. Before we reach the merits of Gibson’s claims we mu st consider the threshold question of our jurisdiction. “Under 28 U.S.C. § 2244(a), which3 In an effort to preserve his claim, Gibson argues that his “false

information” claim is distinct from those raised in his previous § 2241 petition. However, assuming arguendo, that the “false information” claim is new, we must dismiss under the doctrine of abuse of the writ. T he Supreme Court has made clear that the abuse-of-the-writ doctrine — where acourt refuses to entertain a second or subsequent petition because it raises newclaims which should have been raised previously — applies to § 2241 petition s. See McCleskey v. Zant , 499 U.S. 467, 483-84 (1991); George , 62 F.3d at 334-35. Thus, in order for Gibson to advance a new claim in a second § 2241 pe tition he must demonstrate either cause and prejudice, or a fundamental miscar riage of justice. See Schlup v. Delo , 513 U.S. 298, 314-15 (1995). Gibson’s failure to make any showing of cause, prejudice, or a fundamental miscarriage of j ustice requires dismissal. - 4 - governs here, a section 2241 petition which present s no new grounds for relief is subject to dismissal as a successive petition unles s 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 r easoned, nonfrivolous argument on the law and merits. The mandate shall issue forthwith. ENTERED FOR THE COURT

David M. Ebel Circuit Judge