James Rudzavice v. E. Mejia , 637 F. App'x 154 ( 2016 )


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  •      Case: 14-11143      Document: 00513388256         Page: 1    Date Filed: 02/19/2016
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 14-11143                                    FILED
    Summary Calendar                           February 19, 2016
    Lyle W. Cayce
    Clerk
    JAMES L. RUDZAVICE,
    Petitioner-Appellant
    v.
    E. M. MEJIA, Warden; WILLIAM STEPHENS, DIRECTOR, TEXAS
    DEPARTMENT      OF    CRIMINAL JUSTICE,   CORRECTIONAL
    INSTITUTIONS DIVISION,
    Respondents-Appellees
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 4:14-CV-809
    Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
    PER CURIAM: *
    James L. Rudzavice, federal prisoner # 36844-177, appeals the dismissal
    of a petition he filed under 28 U.S.C. § 2241. The district court construed the
    petition as a 28 U.S.C. § 2255 motion and dismissed it as successive and
    unauthorized.
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 14-11143    Document: 00513388256     Page: 2   Date Filed: 02/19/2016
    No. 14-11143
    Rudzavice contends that the district court erred by construing the
    petition as a § 2255 motion.      Because the petition sought to challenge
    Rudzavice’s conviction by arguing that 18 U.S.C. § 1470 is unconstitutionally
    vague, it was properly construed as a §2255 motion. See Pack v. Yusuff, 
    218 F.3d 448
    , 452 (5th Cir. 2000); Tolliver v. Dobre, 
    211 F.3d 876
    , 877-78 (5th Cir.
    2000). Because Rudzavice has filed at least one prior § 2255 motion, and
    because he neither sought nor obtained this court’s authorization to file
    another one, dismissal was proper. See 
    Pack, 218 F.3d at 452
    ; United States v.
    Key, 
    205 F.3d 773
    , 774 (5th Cir. 2000); 28 U.S.C. §§ 2244(b)(3), 2255(h).
    Only in the limited circumstances provided by § 2255(e) may Rudzavice
    attack his conviction via § 2241. See 
    Pack, 218 F.3d at 452
    ; § 2255(e). To do
    so, he would have to show that the § 2255 remedy would be “inadequate or
    ineffective to test the legality of his detention.” § 2255(e); see Reyes-Requena
    v. United States, 
    243 F.3d 893
    , 901 (5th Cir. 2001); 
    Pack, 218 F.3d at 452
    . The
    procedural limits on filing successive § 2255 motions do not render § 2255
    ineffective or inadequate. 
    Pack, 218 F.3d at 452
    . Rudzavice fails to make the
    allegations or showing required to bring his petition within the ambit of
    § 2255(e). The district court correctly determined that the savings clause does
    not apply.
    Rudzavice further asserts that the district judge was biased.          His
    conclusional assertions are no more than a disagreement with the judge’s
    ruling, and he does not show a due process violation. See United States v.
    Couch, 
    896 F.2d 78
    , 81-82 (5th Cir. 1990).
    Rudzavice also argues that, before construing his petition as a § 2255
    motion, the district court should have given him a warning under Castro v.
    United States, 
    540 U.S. 375
    (2003). Castro pertains to the recharacterization
    2
    Case: 14-11143   Document: 00513388256     Page: 3   Date Filed: 02/19/2016
    No. 14-11143
    of a first § 2255 motion. Id.at 383. Because the petition was not Rudzavice’s
    first, the Castro warnings were unwarranted.
    Rudzavice fails to show that the district court erred by dismissing his
    § 2241 petition as a successive and unauthorized § 2255 motion. The judgment
    is AFFIRMED.
    3
    

Document Info

Docket Number: 14-11143

Citation Numbers: 637 F. App'x 154

Judges: Stewart, Owen, Costa

Filed Date: 2/19/2016

Precedential Status: Non-Precedential

Modified Date: 10/19/2024