           Case: 16-11449   Date Filed: 02/12/2018   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-11449
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 5:15-cv-00309-WTH-PRL



JORGE LUIS RIVAS,

                                                         Petitioner-Appellant,

                                  versus

WARDEN, FCC COLEMAN - USP I,

                                                       Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (February 12, 2018)

Before ED CARNES, Chief Judge, WILLIAM PRYOR, and ANDERSON, Circuit
Judges.

PER CURIAM:
              Case: 16-11449     Date Filed: 02/12/2018    Page: 2 of 5


      Jorge Luis Rivas, a state prisoner proceeding pro se, appeals the district

court’s dismissal of his 28 U.S.C. § 2241 petition for a writ of habeas corpus.

      A Florida state court sentenced Rivas in 1984 to consecutive life sentences

for first degree murder and kidnapping and a consecutive fifteen-year sentence for

solicitation to commit a first degree felony. He was later transferred to a federal

prison under a housing contract between Florida and the federal government. In

January 2014 the Florida Parole Commission denied him parole, and two months

later it declined his request to review that denial. Rivas then filed this 28 U.S.C.

§ 2241 petition in June 2015, alleging that the Commission erred by (1)

committing an ex post facto violation by using the wrong set of guidelines for its

decision, (2) ignoring evidence of his rehabilitation, and (3) relying on fabricated

evidence. The district court dismissed his petition for lack of subject matter

jurisdiction on the ground that the federal warden is not the proper respondent

because Rivas is serving a state sentence, albeit in a federal prison. The court also

noted that Rivas’ proper remedy was to file a petition under 28 U.S.C. § 2254,

subject to that statute’s procedural requirements. See 28 U.S.C. § 2254(a)

(providing that a “person in custody pursuant to the judgment of a State court” may

petition for a writ of habeas corpus). This is Rivas’ appeal.

      We review de novo the availability of relief under 28 U.S.C. § 2241.

Dohrmann v. United States, 442 F.3d 1279, 1280 (11th Cir. 2006). The district


                                           2
              Case: 16-11449      Date Filed: 02/12/2018   Page: 3 of 5


court was wrong to dismiss Rivas’ petition for lack of subject matter jurisdiction

on the ground that the federal warden is not the proper respondent. He is. See

Rumsfeld v. Padilla, 542 U.S. 426, 435, 124 S. Ct. 2711, 2718 (2004) (“[T]he

default rule is that the proper respondent is the warden of the facility where the

prisoner is being held, not . . . some . . . remote supervisory official.”). Although

the Florida Parole Commission has final authority as to whether Rivas is released

on parole, the Padilla Court explained that “identification of the party exercising

legal control only comes into play when there is no immediate physical custodian

with respect to the challenged ‘custody.’” Id. at 439, 124 S. Ct. at 2720. As a

result, the federal warden is the proper respondent. See id. (“In challenges to

present physical confinement, we reaffirm that the immediate custodian, not a

supervisory official who exercises legal control, is the proper respondent.”); see

also Robledo-Gonzales v. Ashcroft, 342 F.3d 667, 673 (7th Cir. 2003) (“[The]

custodian is the person having a day-to-day control over the prisoner.”) (quotation

marks omitted).

      The district court had jurisdiction over Rivas’ petition. But as the court

noted, Rivas is subject to the procedural requirements of § 2254 because he is “in

custody pursuant to the judgment of a State court.” 28 U.S.C. § 2254(a); see

Thomas v. Crosby, 371 F.3d 782, 787 (11th Cir. 2004) (“If the terms of § 2254




                                           3
               Case: 16-11449      Date Filed: 02/12/2018    Page: 4 of 5


apply to a state habeas petitioner — i.e., if he is ‘in custody pursuant to the

judgment of a State court’ — then we must apply its requirements to him.”).

      Before determining whether Rivas satisfies the § 2254 procedural

requirements, the district court must follow the requirement of the Castro decision.

The Supreme Court held in Castro v. United States, 540 U.S. 375, 383, 124 S. Ct.

786, 792 (2003), that where a lower court decides to recharacterize a pro se

litigant’s motion as a first 28 U.S.C. § 2255 motion, the court “must notify the pro

se litigant that it intends to recharacterize the pleading, warn the litigant that this

recharacterization means that any subsequent § 2255 motion will be subject to the

restrictions on ‘second or successive’ motions,” and give the litigant a chance to

“withdraw the motion or to amend it so that it contains all the § 2255 claims he

believes he has.” That same principle applies where a district court recharacterizes

a pro se pleading as a § 2254 motion because § 2254 motions are also subject to

second or successive restrictions. 28 U.S.C. § 2244(b)(1)–(2); see Martin v.

Overton, 391 F.3d 710, 713 (6th Cir. 2004) (concluding that the notice requirement

applies to “petitions recharacterized as § 2254 petitions”); Cook v. N.Y. State Div.

of Parole, 321 F.3d 274, 277–78, 282 (2d Cir. 2003) (concluding that the district

court properly treated a pro se § 2241 petition challenging a parole revocation

hearing as a § 2254 application, but remanding the case so that the petitioner could




                                            4
                 Case: 16-11449   Date Filed: 02/12/2018   Page: 5 of 5


withdraw his petition to avoid any second or successive restrictions on future

applications).

      After the district court gives Rivas the notice and opportunity to withdraw

required by Castro, if he chooses to proceed with his motion the district court

should then determine whether Rivas can satisfy § 2254’s procedural requirements.

If he can, then the district court can decide the merits of Rivas’ claims.

      VACATED AND REMANDED.




                                           5
