United States District Court, D. New Jersey
Bojorquez-Villalobos Petitioner Pro se
L. HILLMAN, U.S.D.J.
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.
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
Re: Cesar Bojorquez-Villalobos, Civil Action No. 16-2169
(10th Cir. 2016).
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). (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.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.)
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.)
States Code Title 28, Section 2243, provides in relevant part
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
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 ...