                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-25-2002

Marcelus v. Jordan
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-1780




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Recommended Citation
"Marcelus v. Jordan" (2002). 2002 Decisions. Paper 613.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/613


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                                                     NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT



                            No. 01-1780



                        SAINT JEAN MARCELUS,
                                               Appellant

                                v.

MARTHA JORDAN, Warden of Federal Detention Center, Oakdale, LA;
           JANET RENO, Attorney General of the U.S.;
CAROL BELLEW, Officer-In-Charge of the INS’s office in Cherry Hill, New Jersey;
NANCY HOOKS, Officer-In-Charge of the INS’s office in Oakdale, Louisiana;
             IMMIGRATION AND NATURALIZATION SERVICE

         _______________________________________________

         On Appeal from the United States District Court
                  for the District of New Jersey
                D.C. Civil Action No. 01-cv-00071
                 (Honorable Joseph H. Rodriguez)
                       ___________________


                        Argued July 11, 2002

         Before:   SCIRICA and GREENBERG, Circuit Judges,
                    and FULLAM, District Judge*




     *The Honorable John P. Fullam, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.

                    (Filed: September 25, 2002)

STEVEN A. MORLEY, ESQUIRE (ARGUED)
Bagia & Morley
The Bourse Building, Suite 592
111 South Independence Mall
Philadelphia, Pennsylvania 19106

     Attorney for Appellant

ANDREW C. MacLACHLAN, ESQUIRE (ARGUED)
DAVID V. BERNAL, ESQUIRE
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044

     Attorneys for Appellees
                          __________________

                       OPINION OF THE COURT
                        __________________

SCIRICA, Circuit Judge.

     The issue on appeal is whether we have jurisdiction to consider an appeal from a
motion to transfer venue within the federal system. We will dismiss for lack of
jurisdiction.
                              I.
     Saint Jean Marcelus is a native and citizen of Haiti who entered the United States
at Miami, Florida, on May 22, 1980 as a parolee. In January 1982, he became a lawful
permanent resident of the United States. In 1984, Marcelus moved to New Jersey. On
January 31, 1995, Marcelus was convicted of a third degree offense of "Endangering the
Welfare of a Child" under New Jersey statutes section 2C: 24-4(a) and sentenced to a
period of five years probation and eighteen months in an in-patient drug rehabilitation
program.
     On January 12, 2000, while still on probation, Marcelus was arrested. While in
custody on January 12, the INS served Marcelus with a Notice to Appear, charging that
he was removable under 237(a)(2)(A)(iii) of the Immigration and Nationality Act
(INA), "in that, at any time after admission, you have been convicted of an aggravated
felony as defined in section 101(a)(43) of the Act, a law relating to murder, rape, or
sexual abuse of a child." Marcelus was transferred to the Federal Detention Center in
Oakdale, Louisiana, where he remained until he was removed to Haiti on July 16, 2001.
     On January 4, 2001, Marcelus submitted a Complaint for Declaratory and
Injunctive Relief and a Petition for Writ of Habeas Corpus (with Emergency Stay of
Deportation) in federal court (New Jersey). On January 19, 2001, the United States
District Court for the District of New Jersey ordered the matter contained in the habeas
petition transferred to the United States Court of Appeals for the Fifth Circuit. In the
transfer order, the New Jersey District Court stated that "[a]s a 2241 Petition, this matter
can only be entertained by the federal court in which Petitioner is incarcerated - the
Western District of Louisiana." The order considered the jurisdiction of the transferee
court and concluded that "in Max-George [Max-George v. Reno, 205 F.3d 194 (5th Cir.
2000), vacated by Max-George v. Ashcroft, 533 U.S. 945 (June 29, 2001)], the Fifth
Circuit held that, in matters of deportation following classification of a committed crime
as an aggravated felony, the decision of the [BIA] is reviewable by the court of appeals."
     On January 22, 2001, prior to receiving the transferred case, the Fifth Circuit
denied Marcelus’ December 18, 2000, emergency motion for stay of removal, and granted
the government’s motion to dismiss Marcelus’ petition for review. On January 29, 2001,
the Fifth Circuit received the case transferred from the New Jersey District Court.
     Marcelus mailed a motion to reconsider the transfer order to the District Court in
New Jersey. The District Court received the motion on February 5, 2001. The motion
did not contain the certificate of service required by the Federal Rules of Civil Procedure
and the court’s local rules, so the District Court denied the motion without prejudice on
February 13, 2001.
                              II.
     "[C]ourts of appeals . . . have jurisdiction of appeals from all final decisions of the
district courts of the United States." 28 U.S.C. 1291. Marcelus concedes that "in most
circumstances" where the district court has ruled to transfer venue within the federal
system, such a decision and order is not considered to be collaterally final for appellate
purposes. In fact,
     For many years, this court   and virtually every other court   has held that
     such orders transferring venue are not appealable . . . . [W]here the district
     court is essentially ruling on a motion to transfer venue within the federal
     system . . . ’in the interests of justice’. . . the order issued by the district court
     is not a collaterally final order.
Nascone v. Spudnuts Inc., 735 F.2d 763, 764 (3d Cir. 1984) (citations omitted).

     As a result, we hold that we lack jurisdiction to consider the January 19, 2001
Order transferring venue from the New Jersey District Court to the United States Court of
Appeals for the Fifth Circuit.
                               III.
     For the foregoing reasons, we will dismiss this appeal for lack of jurisdiction.

TO THE CLERK:

          Please file the foregoing opinion.




                                     /s/ Anthony J. Scirica
                                            Circuit Judge

                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                            ___________

                            No. 01-1780
                            ___________


                        SAINT JEAN MARCELUS,
                                               Appellant

                                v.

MARTHA JORDAN, Warden of Federal Detention Center, Oakdale, LA;
           JANET RENO, Attorney General of the U.S.;
CAROL BELLEW, Officer-In-Charge of the INS’s office in Cherry Hill, New Jersey;
NANCY HOOKS, Officer-In-Charge of the INS’s office in Oakdale, Louisiana;
             IMMIGRATION AND NATURALIZATION SERVICE

         _______________________________________________

         On Appeal from the United States District Court
                  for the District of New Jersey
                D.C. Civil Action No. 01-cv-00071
                 (Honorable Joseph H. Rodriguez)
                       ___________________


                        Argued July 11, 2002

         Before:   SCIRICA and GREENBERG, Circuit Judges,
                    and FULLAM, District Judge*




     *The Honorable John P. Fullam, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
                             JUDGMENT



          This cause came to be heard on the record from the United States District
Court for the District of New Jersey and was argued by counsel on July 11, 2002. On
consideration whereof, it is now hereby
          ORDERED and ADJUDGED by this Court that the appeal of the judgment
of the District Court entered January 24, 2001, be, and the same is hereby dismissed for
lack of jurisdiction. No costs taxed. All of the above in accordance with the opinion of
this Court.


                              ATTEST:




                              Acting Clerk

DATED: 25 September 2002                          September 25, 2002




TO:       Marcia M. Waldron, Clerk

FROM:     Judge Scirica

RE:       Marcelus v. Jordan, et al.
          No. 01-1780
          Argued: July 11, 2002



Dear Marcy:

          Please file the attached not precedential opinion which has been cleared in
accordance with our procedure. The signed original is being delivered to your office.

                                     Sincerely,




                                     Anthony J. Scirica

AJS:sss

cc (letter only):   Judge Greenberg
            Judge Fulla
