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Bojorquez-Villalobos v. Kirby

United States District Court, D. New Jersey

October 11, 2017

CESAR BOJORQUEZ-VILLALOBOS, Petitioner,
v.
WARDEN MARK KIRBY, Respondent.

          Cesar Bojorquez-Villalobos Petitioner Pro se

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Petitioner Cesar Bojorquez-Villalobos, a prisoner confined at the Federal Correctional Institution (“FCI”) in Fairton, New Jersey, filed a writ of habeas corpus under 28 U.S.C. § 2241. (ECF No. 1.) At this time, the Court will review the 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 Petition will be dismissed.

         I. BACKGROUND

         The United States Court of Appeals for the Tenth Circuit provides the following summary of the procedural history of Petitioner's underlying criminal case:

Cesar Bojorquez-Villalobos pled guilty in 2011 to conspiring to distribute methamphetamine in violation of 21 U.S.C. § 846 and to being an illegal alien in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2). The district court sentenced him to 108 months in prison-a sentence that was later reduced to 87 months based on Amendment 782 of the United States Sentencing Guidelines. In 2013, Mr. Bojorquez-Villalobos moved unsuccessfully to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, and this court denied a certificate of appealability.

         In Re: Cesar Bojorquez-Villalobos, Civil Action No. 16-2169 (10th Cir. 2016).

         In 2016, Petitioner requested permission from the Tenth Circuit to file a second or successive § 2255 motion based on the Supreme Court's holding in Johnson v. United States, 135 S.Ct. 2551 (2015).[1] (Id.) The Tenth Circuit denied his request because Petitioner did not receive an increased sentence under the ACCA or the career-offender provision of the sentencing guidelines.[2]Instead, Petitioner received a two-level sentence enhancement under U.S.S.G. § 2D1.1(b)(1), which does not contain the language invalidated in Johnson. (Id.)

         Petitioner thereafter filed the instant habeas Petition. (ECF No. 1.) In his Petition, Petitioner argues that “[a]t issue is petitioner['s] contention that the residual clause of U.S.S.G. § 4Bl.2(a)(2) is void for vagueness, and/or that his aggravated battery conviction does not constitute a "crime of violence" as defined in U.S.S.G. § 4Bl.2(a).” (Pet. 13.)

         II. DISCUSSION

         A. Legal Standard

         United States Code Title 28, Section 2243, provides in relevant part as follows:

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.

         A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition must be construed liberally. See Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002). Nevertheless, a federal district court can dismiss a habeas corpus petition if it appears from the face of the petition that the petitioner is not ...


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