IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 6, 2009
No. 08-20443
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE LUIS RODRIGUEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:89-CR-229-3
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Jose Luis Rodriguez, former federal prisoner # 00582-424, challenges the
district court’s transfer and denial of his “original” complaint filed pursuant to
F ED. R. C IV. P. 60(b)(4) and (5). Rodriguez filed his complaint in the Brownsville
Division of the Southern District of Texas arguing that the judgment in Case No.
“B-89-197" was void. He asserted that property taken from a safety deposit box
at the San Benito Bank and Trust Company was improperly seized and retained
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-20443
by the Government for 18 years. Rodriguez requested compensation for the loss
of his property.
The district court in Brownsville granted the Government’s motion to
transfer Rodriguez’s complaint to Houston because that is where Rodriguez’s
criminal case occurred, specifically Case No. H-89-cr-00229-03, and where
Rodriguez previously sought return of the property at issue here. Rodriguez’s
prior motion for the return of property was denied as untimely. The district
court in Houston treated Rodriguez’s instant action as a subsequent motion for
the return of property and denied it.
On appeal, Rodriguez asserts for the first time that the Government failed
to properly serve him with a copy of its motion to dismiss or alternatively
transfer his complaint. He asserts that his due process rights were violated
because he was not allowed an opportunity to respond to the Government’s
motion prior to the district court transferring his case. Rodriguez further asserts
that the district court’s decision transferring his case to the Houston division
should be reversed because the Government failed to show “good cause” for the
transfer.
It is unclear from the record whether Rodriguez received service of the
Government’s motion to dismiss. However, what is clear is that on June 2, 2008,
Rodriguez was hand delivered a copy of the district court’s order granting the
Government’s motion to dismiss and its transfer order. Rodriguez did not file
any response or objection to the district court’s transfer order prior to the denial
of his action on June 25, 2008. Rodriguez does not explain on appeal what
arguments he would have presented in opposition to the Government’s motion
to dismiss. Additionally, other than the conclusory assertion that there was “no
good cause” for the transfer, Rodriguez has failed to explain why the transfer
was erroneous. Thus, he has failed to show any due process violation. See
United States v. Jimenez, 256 F.3d 330, 345 (5th Cir. 2001).
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No. 08-20443
Although not altogether clear, if Rodriguez’s brief is liberally construed,
he may be arguing that his “original” complaint in the district court should have
been treated as an independent action in equity. Even so, he has not shown that
he is entitled to relief on appeal. The record reflects that Rodriguez had an
adequate remedy at law concerning the property in question pursuant to F ED.
R. C RIM. P. 41(g). Because Rodriguez is essentially attempting to relitigate the
same issues he presented in his Rule 41(g) motion that was previously denied,
the district court did not abuse its discretion in denying the instant complaint.
See Bankers Mortgage Co. v. United States, 423 F.2d at 73, 79 (5th Cir. 1990).
Accordingly, the judgment of the district court is AFFIRMED.
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