RODRIGUEZ V. UNITED STATES OF AMERICA
OPINION. Signed by Judge Noel L. Hillman on 6/20/2017. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,
MACARIO MAR RODRIGUEZ,
Civ. No. 16-5452 (NLH)
Macario Mar Rodriguez
Federal Correctional Institution
East: P.O. Box 2000
Fort Dix, NJ 08640
Petitioner Pro se
HILLMAN, District Judge
Petitioner Macario Mar Rodriguez, a prisoner confined at
the Federal Correctional Institution (“FCI”) in Fort Dix, New
Jersey, filed this writ of habeas corpus under 28 U.S.C. § 2241,
challenging the validity of his sentence. (ECF No. 1).
matter was administratively terminated due to Petitioner’s
failure to satisfy the filing fee requirement (ECF Nos. 2, 3)
and failure to provide any information on his grounds for relief
(ECF Nos. 4, 5).
Petitioner has since paid the required filing
fee and submitted an Amended Petition containing his grounds for
(ECF No. 6.)
At this time, the Court will review the
Amended Petition pursuant to Rule 4 of the Rules Governing
Section 2254 Cases, (amended Dec. 1, 2004), made applicable to §
2241 petitions through Rule 1(b) of the Habeas Rules. See also
28 U.S.C. § 2243.
For the reasons set forth below, the Amended
Petition will be dismissed.
On September 10, 2014, the United States District Court
for the Southern District of Texas sentenced Petitioner to 144
months imprisonment for conspiracy to transport undocumented
aliens in violation of 8 U.S.C. § 1324.
See United States v.
Rodriguez, Crim. Action No. 13-1244 (S.D. Tex. 2014).
Petitioner filed a Motion to Vacate under 28 U.S.C. § 2255 on
July 6, 2016 and on July 28, 2016, the court entered an order
dismissing that petition as untimely.
Rodriguez v. United
States, Civ. Action No. 16-197 (S.D. Tex. 2014).
On November 15, 2016, Petitioner filed his Amended Section
2241 Petition with this Court, raising ineffective assistance of
(ECF No. 6.)
The instant Amended Petition is
identical to the Section 2255 Petition that the Southern
District of Texas dismissed as untimely in July 2016.
With respect to screening the instant habeas petition, 28
U.S.C. § 2243 provides in relevant part:
A court, justice or judge entertaining an
application for a writ of habeas corpus shall
forthwith award the writ or issue an order
directing the respondent to show cause why the
writ should not be granted, unless it appears
from the application that the applicant or
person detained is not entitled thereto.
As Petitioner is proceeding pro se, his petition is held to
less stringent standards than those pleadings drafted by
See Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010)
(“It is the policy of the courts to give a liberal construction
to pro se habeas petitions”) (internal quotation marks and
Nevertheless, “a district court is
authorized to dismiss a [habeas] petition summarily when it
plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief in
the district court[.]”
Lonchar v. Thomas, 517 U.S. 314, 320
Petitioner is seeking to have this Court review the
judgment of conviction and sentence entered by the Southern
District of Texas in these habeas proceedings.
challenge to the validity of a federal conviction or sentence
must be brought under 28 U.S.C. § 2255.
See Jackman v. Shartle,
535 F. App'x 87, 88 (3d Cir. 2013) (citing Okereke v. United
States, 307 F.3d 117, 120 (3d Cir. 2002)).
This is true because
§ 2255 prohibits a district court from entertaining a challenge
to a prisoner's federal sentence through § 2241 unless the
remedy under § 2255 is “inadequate or ineffective.”
U.S.C. § 2255(e).
Indeed, § 2255(e) states that:
[a]n application for a writ of habeas corpus
in behalf of a prisoner who is authorized to
apply for relief by motion pursuant to this
section, shall not be entertained if it
appears that the applicant has failed to apply
for relief, by motion, to the court which
sentenced him, or that such a court has denied
him relief, unless it also appears that the
remedy by the motion is inadequate or
ineffective to test the legality of his
28 U.S.C. § 2255(e).
A § 2255 motion is “inadequate or
ineffective,” which permits a petitioner to resort to a § 2241
petition, “only where the petitioner demonstrates that some
limitation or procedure would prevent a § 2255 proceeding from
affording him a full hearing and adjudication of his wrongful
Cradle v. U.S. ex rel. Miner, 290 F.3d 536,
538 (3d Cir. 2002) (citations omitted).
2255 is not inadequate or ineffective merely because the
sentencing court does not grant relief, the one-year statute of
limitations has expired, or the petitioner is unable to meet the
stringent gatekeeping requirements of ... § 2255.”
F.3d at 539 (citations omitted).
“It is the inefficacy of the
remedy, not the personal inability to use it, that is
Id. at 538 (citation omitted). “The provision
exists to ensure that petitioners have a fair opportunity to
seek collateral relief, not to enable them to evade procedural
Id. at 539 (citing In re Dorsainvil, 119 F.3d
245, 251–52 (3d Cir. 1997)).
In Dorsainvil, the Third Circuit held that the remedy
provided by § 2255 is “inadequate or ineffective,” permitting
resort to § 2241, where a prisoner who previously had filed a §
2255 motion on other grounds “had no earlier opportunity to
challenge his conviction for a crime that an intervening change
in substantive law may negate[.]”
119 F.3d at 251.
Nevertheless, the Third Circuit emphasized that its holding was
not suggesting that a § 2255 motion was “inadequate or
ineffective” merely because a petitioner is unable to meet the
strict gatekeeping requirements of § 2255.
valve,” as stated in Dorsainvil, is a narrow one and has been
held to apply in situations where the prisoner has had no prior
opportunity to challenge his conviction for a crime later deemed
to be non-criminal by an intervening change in the law.
Okereke, 307 F.3d at 120 (citing Dorsainvil, 119 F.3d at 251).
Here, Petitioner does not allege facts which bring him
within the Dorsainvil exception. His claims do not allege that
he had no earlier opportunity to challenge his conviction for a
crime that an intervening change in substantive law may negate.
Instead, he makes the identical arguments about ineffective
assistance of counsel in his underlying criminal proceeding that
he made in his prior § 2255 Petition, which was already
dismissed as untimely by the Texas district court.
above, “Section 2255 is not inadequate or ineffective merely
because the sentencing court does not grant relief, the one-year
statute of limitations has expired, or the petitioner is unable
to meet the stringent gatekeeping requirements of the amended §
Cradle, 290 F.3d at 539; Drabovskiy v. Warden of FCI
Allenwood, 595 F. App’x 96 (3d Cir. 2014) (per curiam) (same).
Accordingly, this Court lacks jurisdiction to consider the
instant habeas Petition.
Whenever a civil action is filed in a
court that lacks jurisdiction, “the court shall, if it is in the
interests of justice, transfer such action ... to any other such
court in which the action ... could have been brought at the
time it was filed.”
28 U.S.C. § 1631.
Because Petitioner has
already filed a § 2255, he must receive authorization from the
Fifth Circuit to file another one.
See 28 U.S.C. § 2255(h).
Because the Amended Petition is identical to the 2255 petition
already rejected by the sentencing court, this Court finds that
it is not in the interest of justice to transfer the Amended
Petition to the Fifth Circuit for its consideration as a request
to file a second or successive § 2255 motion.1
For the foregoing reasons, the Amended Petition will be
summarily dismissed due to a lack of jurisdiction. An
appropriate order follows.
Dated: June 20, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
The Court’s decision not to transfer the instant Amended
Petition does not preclude Petitioner from filing a request with
the Fifth Circuit on his own.
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