                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-21-2005

Tavares v. Meyers
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2742




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Recommended Citation
"Tavares v. Meyers" (2005). 2005 Decisions. Paper 1328.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1328


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BPS-184                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    NO. 04-2742
                                 ________________

                             PEDRO JUAN TAVARES,

                                            Appellant

                                             v.

                 CHARLES MEYERS, Warden, Passaic County Jail;
                       Secretary of the Department of Homeland
                 Security; MICHAEL GARCIA, Assistant Secretary,
   Bureau of Immigration and Customs Enforcement; Attorney General of the United
               States; DONALD K. STERN, United States Attorney or
               successor-in-office; ROBERT L. PEABODY, Assistant
                       U.S. Attorney, District of Massachusetts*
                     ____________________________________

                   On Appeal From the United States District Court
                             For the District of New Jersey
                              (D.C. Civ. No. 04-cv-1909)
                     District Judge: Honorable William H. Walls
                   _______________________________________

                      Submitted For Possible Summary Action
                    Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  March 17, 2005

          Before: RENDELL, FISHER and VAN ANTWERPEN, Circuit Judges

                                (Filed: April 21, 2005)
                                 _________________

                                     OPINION
                                 _________________


*Caption amended pursuant to Rule 43(c), Fed. R. App. Pro.
PER CURIAM

       Pedro Juan Tavares appeals pro se from the order of the United States District

Court for the District of New Jersey dismissing both his petition under 28 U.S.C. § 2241

and his motion for appointment of counsel for lack of jurisdiction. Tavares, an alien who

was being detained at the time he filed this appeal, was convicted of drug-related offenses

in the United States District Court for the District of Massachusetts. Tavares filed a

motion in that court to vacate, set aside, or correct sentence under 28 U.S.C. § 2255.

When the government failed to respond to the § 2255 motion, the District Court granted

Tavares’ motion for default judgment, vacated his sentence, and ordered his release. The

government then filed a motion to vacate the default judgment, which the District Court

granted. In 2001, upon the recommendation of the Magistrate Judge, the District Court

denied Tavares’ § 2255 motion.

       Tavares applied for a certificate of appealability (“COA”) in the Court of Appeals

for the First Circuit. In his COA application, Tavares’ sole claim was that the District

Court erred in vacating the default judgment previously granted in his favor. The Court

of Appeals denied the COA application, explaining that, under Federal Rule of Civil

Procedure 55(e), a default judgment cannot be entered against the United States unless

“the claimant establishes a claim or right to relief by evidence satisfactory to the court.”

The Court noted that because Tavares’ underlying habeas claims were meritless, he had

not supplied the requisite satisfactory evidence to the District Court.




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         In 2004, Tavares filed a petition under 28 U.S.C. § 2241 in the United States

District Court for the District of New Jersey, raising the same claim previously raised in

the First Circuit. The District Court characterized Tavares’ petition as a § 2255 motion

and determined that it lacked jurisdiction because the motion was “second or successive”

and Tavares had not obtained authorization to file it, as required by 28 U.S.C.

§ 2244(b)(3)(A). The District Court also determined that it was not “in the interest of

justice” to transfer the petition under 28 U.S.C. § 1631. The District Court dismissed

Tavares’ petition without prejudice. Tavares timely filed this appeal.

         We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We can affirm the

District Court on any basis supported in the record. See Fairview Township v. EPA, 773,

F.2d 517, 524 n.15 (3d Cir. 1985). We agree with the District Court that the relief

Tavares seeks is not properly requested in a petition under 28 U.S.C. § 2241. Tavares

challenges the Massachusetts District Court’s order vacating the default judgment. He

does not challenge the execution of his sentence, see Coady v. Vaughn, 251 F.3d 480, 485

(3d Cir. 2001), and he is not seeking alternative habeas corpus relief due to the

inadequacy or ineffectiveness of § 2255, see In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.

1997).

         Tavares’ claim would be equally misplaced in a § 2255 petition, however, as he is

not challenging his conviction, the imposition of his sentence, or the jurisdiction of the

court which imposed his sentence. See 28 U.S.C. § 2255. While it is evident from his

pleadings that Tavares ultimately seeks release from confinement, he seeks this release

                                              3
through reinstatement of the Massachusetts District Court’s order that granted default

judgment and ordered his release. Tavares neither reasserts nor reargues the habeas

corpus claims raised in his original § 2255 motion. The gist of Tavares’ present claim is

that the government’s failure to respond to his § 2255 motion filed in the District of

Massachusetts constituted misconduct justifying the default judgment entered in his

favor. Although Tavares labeled his petition as arising under § 2241, his pleading merely

seeks relief from the Massachusetts District Court’s order vacating the default judgment.

His motion is thus an attack upon the § 2255 proceeding in the District of Massachusetts.

See Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004). Tavares’ petition is properly

construed as a motion for relief from judgment under Federal Rule of Civil Procedure

60(b), which should have been filed in the United States District Court for the District of

Massachusetts. We therefore agree with the District Court that it lacked jurisdiction over

this motion. As the Court of Appeals for the First Circuit has considered this issue in its

denial of Tavares’ COA application, we also agree with the District Court’s determination

that transfer would not be in the interest of justice. See 28 U.S.C. § 1631.

       For the foregoing reasons, we will summarily affirm the District Court’s order.

See I.O.P. 10.6. To the extent that Tavares’ response opposing summary action includes

requests to combine this petition with a pending § 2241 petition in the District Court and

for a hearing on this matter, these requests are denied.




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