CASTILLO v. UNITED STATES OF AMERICA

Filing 2

OPINION. Signed by Judge Renee Marie Bumb on 5/2/17. (jbk, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
________________________
HIGINIO CASTILLO,
Petitioner,
v.

UNITED STATES OF AMERICA,
Respondent.
________________________

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Civ. No. 17-1947 (RMB)

OPINION

BUMB, United States District Judge
Petitioner, Higinio Castillo, a prisoner confined in FCI
Fort Dix, in Fort Dix, New Jersey, filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241 on March 24, 2017.
(Pet., ECF No. 1.)1

Petitioner seeks resentencing of his two

consecutive 120- month terms of imprisonment to make the terms

1

Petitioner filed an IFP application, pursuant to 28 U.S.C. §
1915(a), with the requisite certification from a prison
official, indicating that his current inmate account balance is
$431.06. (IFP App., ECF No. 1-1.)
According to this Court’s
Local Civil Rule 81.2(c), “[i]f the prison account of any
petitioner for a writ of habeas corpus] or movant exceeds $200,
the petitioner or movant shall not be considered eligible to
proceed in forma pauperis.” Therefore, the Court will deny the
IFP application.
Petitioner will be given the opportunity to
reopen this § 2241 habeas proceeding by paying the $5.00 filing
fee, however, for the reasons discussed below, this Court lacks
jurisdiction over the petition, and if reopened, the Court would
dismiss for lack of jurisdiction.

concurrent.

(Pet.,

ECF

No.

1,

¶6.)

Petitioner

asserts

jurisdiction under 28 U.S.C. § 2241 and 18 U.S.C. § 3582, and
argues that his sentence should be reduced pursuant Amendment
794 of U.S. Sentencing Guideline (“USSG”) § 3B1.2.

(Id., ¶7.)

Petitioner filed an IFP application, pursuant to 28 U.S.C.
§

1915(a),

with

the

requisite

certification

from

a

prison

official, indicating that his current inmate account balance is
$431.06. (IFP App., ECF No. 1-1.)
Local

Civil

Rule

81.2(c),

“[i]f

According to this Court’s
the

prison

account

of

any

petitioner [for a writ of habeas corpus] or movant exceeds $200,
the petitioner or movant shall not be considered eligible to
proceed in forma pauperis.”

Therefore, the Court will deny the

IFP application.
Petitioner will be given the opportunity to reopen this §
2241 habeas proceeding by paying the $5.00 filing fee.

However,

for the reasons discussed below, this Court lacks jurisdiction
over the petition, and if reopened, the Court would dismiss for
lack of jurisdiction pursuant to Rule 4 of the Rules Governing
Section

2254

Cases

in

the

United

States

District

Courts,

applicable to § 2241 cases under Rule 1, the scope of the Rules.
Rule

4

requires

the

District

Court

to

promptly

examine

the

petition, and “if it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief

2 

in the district court, the judge must dismiss the petition . .
.”

I.

BACKGROUND
Petitioner is presently serving a federal sentence in FCI

Fort Dix.

(Pet., ECF No. 1.)

In June 2015, Petitioner pled

guilty, in the United States District Court for the Eastern
District of Pennsylvania, to kidnapping, brandishing a firearm
while kidnapping, and a variety of drug trafficking charges.
United States v. Castillo,   No. 16-3948, 2017 WL 543188, at *1
(3d Cir. Feb. 10, 2017).
month sentences.

He is serving two consecutive 120-

(Id.)

One year after his sentencing, Petitioner sought relief in
the sentencing court under Amendment 794 to USSG 3B1.2,2 and
relief

was

denied.

Id.

The

Third

Circuit

affirmed.

Id.

Petitioner now seeks the same relief from this Court.
II.

DISCUSSION
Petitioner seeks relief under 18 U.S.C. § 3582.

two avenues for sentence modification under § 3582.

There are
Subsection

(c)(1)(B) authorizes the district court to modify a term of
imprisonment where “expressly permitted by statute or by Rule 35
of the Federal rules of Criminal Procedure.” See Braswell v.

2

Amendment 794 to the U.S. Sentencing Guidelines “amended the
commentary to USSG § 3B1.2 (lower offense level for ‘mitigating
role’ in criminal activity).” Castillo, 2017 WL 543188, at *1.
3 

Gallegos, 82 F. App’x 633, 635 & n. 2 (10th Cir. 2003) (“Because
a motion filed under § 3582 requests modification of a sentence,
it follows that such a motion must be filed in the district
court which imposed the sentence.”)

This Court did not sentence

Petitioner and cannot modify his sentence under § 3582(c)(1)(B).
Moreover, Petitioner applied to his sentencing court for relief
and was denied.
The second avenue for sentence modification falls under 18
U.S.C. § 3582(c)(1)(A), which states:
The
court
may
not
modify
a
term
of
imprisonment once it has been imposed except
that-(1) in any case-(A) the court, upon motion of the
Director of the Bureau of Prisons, may
reduce the term of imprisonment (and
may impose a term of probation or
supervised release with or without
conditions that does not exceed the
unserved portion of the original term
of imprisonment), after considering the
factors set forth in section 3553(a) to
the extent that they are applicable, if
it finds that-(i)
extraordinary
and
compelling
reasons warrant such a reduction; or
. . .

This provision is inapplicable here because the motion for
a reduction of sentence is not brought by the Director of the
Bureau of Prisons.

4 

Finally, Petitioner asserts jurisdiction under 28 U.S.C. §
2241, which provides, in pertinent part:
(a) Writs of habeas corpus may be granted by
the Supreme Court, any justice thereof, the
district courts and any circuit judge within
their respective jurisdictions. . . .
(c) The writ of habeas corpus
extend to a prisoner unless—
(3)
He
is
Constitution
States

shall

not

in
custody
in
violation
of
the
or laws or treaties of the United

In the Third Circuit, the exception to the general rule that
a challenge to a conviction or sentence must be brought under 28
U.S.C. § 2255 in the sentencing court has only been applied
“where

the

petitioner

was

in

the

‘unusual

position’

of

a

prisoner with no prior opportunity to challenge his conviction
for a crime that an intervening change in substantive law could
negate with retroactive application.”

Okereke v. U.S., 307 F.3d

117, 120 (3d Cir. 2002) (quoting In re Dorsainvil, 119 F.3d 245,
251 (3d Cir. 1997)).
Sentencing

Guidelines

Savage

Zickefoose,

v.

“[C]hallenges to the application of the
are
446

properly
F.

App’x

considered
524,

526

under
(3d

§

Cir.

2255.”
2011)

(citing United States v. Eakman, 378 F.3d 294, 297 (3d Cir.
2004).
Petitioner presented substantially the same claim presented
here to the Eastern District of Pennsylvania.
not

inadequate

or

ineffective

merely
5 

because

“Section 2255 is
the

sentencing

court does not grant relief. . .”

Cradle v. U.S. ex rel. Miner,

290 F.3d 536, 539 (3d Cir. 2002).

Therefore, this Court lacks

jurisdiction under § 2241.
Furthermore,
decision,

the

on

Third

appeal
Circuit

from

the

construed

sentencing

Petitioner’s

court’s

motion

as

seeking relief under 18 U.S.C. § 3582(c)(2), and affirmed the
District Court’s denial of the motion on that basis.
2017 WL 543188, at *1.

Castillo,

Therefore, it would not be in the

interest of justice to characterize this petition as brought
under § 2255 and transfer it to the sentencing court pursuant to
28 U.S.C. § 1631.3
III. CONCLUSION
For

the

reasons

discussed

above,

the

Court

will

deny

Petitioner’s IFP application and administratively terminate this
action.

Although

Petitioner

may

reopen

this

proceeding

by

paying the $5.00 filing fee, pursuant to Rule 4 of the Rules
Governing

Section

2254

Cases

in

the

United

States

District

Courts, this Court would dismiss the § 2241 petition for lack of

3

28 U.S.C. § 1631 provides, in relevant part:
[w]henever a civil action is filed in a
court . . . and that court finds that there
is a want of jurisdiction, the court shall,
if it is in the interest of justice,
transfer such action or appeal to any other
such court in which the action or appeal
could have been brought at the time it was
filed
6 

jurisdiction.
An appropriate Order follows.

s/Renée Marie Bumb__________
RENÉE MARIE BUMB
United States District Judge
Dated: May 2, 2017

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