Enaam Arnaout v. Helen Marberry

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 5, 2009*
Decided November 12, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 09-2029
ENAAM ARNAOUT,
Petitioner-Appellant,
v.
HELEN MARBERRY,
Respondent-Appellee.
Appeal from the United
States District Court for the
Southern District of Indiana,
Terre Haute Division.
No. 2:09-cv-055-WTL-JMS
William T. Lawrence, Judge.
Order
In 2005 Enaam Arnaout, a Sunni Muslim who is a federal prisoner, decided that be-
cause no one else was available to teach other inmates Arabic, so that they could read
the Qur’an and say the five daily prayers correctly, he would teach them himself. Doing
so violated a prison rule that forbids inmates to organize and lead any meeting without
approval. A prison disciplinary board revoked 14 days of Arnaout’s good-time credits.
He sought review by writ of habeas corpus under 28 U.S.C. §2241, contending that the
Constitution’s first amendment and the Religious Freedom Restoration Act, 42 U.S.C.
§2000bb–1, require the prison to permit inmates to organize and lead religious instruc-
tion. District Judge McKinney denied the petition; Arnaout did not appeal.
Ten months later Arnaout filed a second §2241 petition advancing the same legal
theories. The second petition arises from the same events as the first and, like the first,
* Respondent was not served with process in the district court and has elected not to participate in the
court of appeals. After examining petitioner’s brief and the record, we have concluded that oral argument is
unnecessary. See Fed. R. App. P. 34(a); Cir. R. 34(f).

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No. 09-2029 Page 2
seeks restoration of the 14 days’ credits. Arnaout contended that Judge McKinney did
not discuss all of the legal contentions presented in the first petition. This petition was
assigned to District Judge Lawrence, who denied it on the ground that Arnaout had not
sought and received advance permission from this court under 28 U.S.C. §2244(b)(3).
If appellate permission were required, then the judge should have dismissed the peti-
tion for lack of jurisdiction. See Nuñez v. United States, 96 F.3d 990 (7th Cir. 1996). The
district court’s judgment provides, however, that the petition is denied with prejudice.
That is a decision on the merits and is incompatible with the district judge’s rationale. As
it happens, however, the judgment is correct, because the rationale is wrong.
The district judge apparently assumed that Arnaout’s petition was based on §2255,
to which §2244(b) always applies, or §2254, to which it often applies. But a contest by a
federal prisoner to a revocation of good-time credits rests on §2241. No advance appel-
late approval is required for a proceeding under §2241, whether or not the proceeding
may be deemed successive. See Felker v. Turpin, 518 U.S. 651 (1996); Collins v. Holinka,
510 F.3d 666 (7th Cir. 2007); Valona v. United States, 138 F.3d 693 (7th Cir. 1998).
What is true is that, even before the Antiterrorism and Effective Death Penalty Act,
which added the prior-approval requirement, federal courts declined to entertain suc-
cessive petitions under §2241 or §2255, unless the law had changed or new facts had
come to light. Felker describes this older doctrine, known as “abuse of the writ.” Ar-
naout does not contend that the law has changed or that new facts have come to light.
Instead he argues only that Judge McKinney did not fully discuss his legal contentions.
That might have been a good ground for appeal; it is not a good ground for starting
from scratch with a second petition. Arnaout’s second petition is an abuse of the writ
and was thus properly dismissed with prejudice. See Morales v. Bezy, 499 F.3d 668, 672
(7th Cir. 2007); Taylor v. Gilkey, 314 F.3d 832, 834–35 (7th Cir. 2002). Although abuse of
the writ is an affirmative defense, see Robinson v. Fairman, 704 F.2d 368, 370 (7th Cir.
1983), and the warden did not raise it in so many words, Arnaout was notified by the
briefs of the possibility that the district court’s decision could be sustained on appeal
under an alternative theory. There would be no point in a remand that served no pur-
pose other than articulating the right phrase to describe the district judge’s disposition.
AFFIRMED

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