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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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