James Rudzavice v. E. Mejia ( 2018 )

Case: 17-11491 Document: 00514602638 Page: 1 Date Filed: 08/16/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-11491 August 16, 2018
Summary Calendar
Lyle W. Cayce
Clerk
JAMES L. RUDZAVICE,
Petitioner-Appellant
v.
E.M. MEJIA, Warden,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:14-CV-809
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
James L. Rudzavice, federal prisoner # 36844-177, is imprisoned for
receiving child pornography and attempting to transfer obscene material to a
minor. United States v. Rudzavice, 586 F.3d 310, 312 (5th Cir. 2009). He has
previously filed an unsuccessful 28 U.S.C. § 2255 motion, and in 2014 he
attempted to challenge his convictions with a 28 U.S.C. § 2241 petition. The
district court dismissed the petition as not properly brought under § 2241, and
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-11491 Document: 00514602638 Page: 2 Date Filed: 08/16/2018
No. 17-11491
we affirmed that dismissal. Rudzavice v. Mejia, No. 14-11143 (5th Cir. Feb. 19,
2016) (unpublished).
Relevant to the instant appeal, Rudzavice filed a motion styled “Motion
for Relief of Judgement / Transfer of Venue” (Motion for Relief) which the
district court promptly denied. Rudzavice filed a petition for a writ of
mandamus that we construed as a notice of appeal from the denial of the
Motion for Relief. In re Rudzavice, No. 17-11006 (5th Cir. Dec. 15, 2017)
(unpublished).
The Motion for Relief was an attempt to use § 2241 to challenge the
convictions that this court affirmed in 2009. Under a liberal construction, it
could have been deemed a motion under Federal Rule of Civil Procedure 60(b)
that raised a new theory of relief, in which case it was, in effect, a successive
and unauthorized § 2255 motion. See United States v. Hernandes, 708 F.3d
680, 681 (5th Cir. 2013) (citing Gonzalez v. Crosby, 545 U.S. 524, 532 (2005)).
Otherwise, the Motion for Relief was unauthorized by any statute and lacked
any jurisdictional basis. See United States v. Early, 27 F.3d 140, 141–42 (5th
Cir. 1994) (per curiam). Even if construed as a proper Rule 60(b) motion, we
have previously rejected Rudzavice’s arguments. Thus, the Motion for Relief
and this appeal from its denial both lack arguable merit. Accordingly, the
appeal is DISMISSED AS FRIVOLOUS. See Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983); 5TH CIR. R. 42.2.
Rudzavice is WARNED that additional frivolous filings in this court or
the district court will result in monetary sanctions and limits on his access to
this court and any court subject to this court’s jurisdiction.
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