IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-31066

Summary Calendar

HECTOR RODRIGUEZ-PENA,

Plaintiff–Appellant,

versus

T. G. WERLICH,

Defendant–Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:14-CV-994

Before REAVLEY, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:*

Hector Rodriguez-Pena, federal prisoner # 07935-069, was convicted, in

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 28, 2015

Lyle W. Cayce

Clerk

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federal court in Puerto Rico, of various offenses, including conspiracy to import, 

importation, and possession with the intent to distribute controlled substances; possessing a firearm during the commission of a drug-trafficking 

offense; and aiding and abetting an attempt to kill federal agents who were in 

the line of duty. The judgment was affirmed. United States v. Rodriguez-Pena,

Nos. 93-2259, 93-2260, 93-2261, 93-2262, 1995 WL 275691, at *1, *11, *19 (1st 

Cir. May 11, 1995).

Rodriguez-Pena was denied relief under 28 U.S.C. § 2255 in 2003, and in 

2009 he was denied authorization to file a successive § 2255 motion. In 2014,

he filed an ostensible 28 U.S.C. § 2241 petition in the United States District 

Court for the Western District of Louisiana, where he is imprisoned. Adopting 

the report and recommendation of the magistrate judge, that court dismissed 

for want of jurisdiction. 

Rodriguez-Pena claims that Rosemond v. United States, 134 S. Ct. 1240 

(2014), requires reversal of his conviction of aiding and abetting the possession 

of a firearm in furtherance of a drug-trafficking offense. Because he challenges

the validity of his conviction, his petition was properly construed as a § 2255 

motion. See Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000). 

Even if Rosemond applies retroactively, Rodriguez-Pena may not proceed with a § 2241 petition under the savings clause of § 2255(e), given that he 

has not established that pre-Rosemond law precluded his claim. In its decision 

in the direct appeal, the First Circuit made clear that the government had been 

required to prove that Rodriguez-Pena had advance knowledge of the firearms 

used in the drug-trafficking offense. See Rodriguez-Pena, 1995 WL 275691, 

at *12; see also United States v. DeMasi, 40 F.3d 1306, 1316 (1st Cir. 1994). 

Thus, it “was not error” to determine that § 2241 was unavailable. See Jeffers

v. Chandler, 253 F.3d 827, 831 (5th Cir. 2001). 

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Because it was not the sentencing court, “the district court did not have 

jurisdiction to treat” Rodriguez-Pena’s petition as a § 2255 motion. Solsona v. 

Warden, F.C.I., 821 F.2d 1129, 1132 (5th Cir. 1987). The district court was 

correct in dismissing.

AFFIRMED.

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