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 The docket from the District of Columbia lists the Immigration and Naturalization Service

(“INS”), the Bureau of Immigration and Customs Enforcement (“ICE”), and the York County Prison as

being Respondents.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CESAR DE LEON MORILLO, :

:

Petitioner :

:

v. : CIVIL NO. 4:CV-06-677

:

: (Judge Jones) 

INS, ET AL., :

:

Respondents :

ORDER

April 11, 2006

Background

Cesar De Leon Morillo (“Petitioner” or “Morillo”), filed this pro se Petition for

Writ of Habeas Corpus (“the Petition”) pursuant to 28 U.S.C. § 2241 in the United

States District Court for the District of Columbia. Named as sole Respondent in the

Petition is the United States District Court for the District of Columbia.1 The Petition

is accompanied by a motion to proceed in forma pauperis application. 

Morillo challenges his ongoing detention at the York County Prison, in York,

Pennsylvania. Morillo describes himself as a native and citizen of the Dominican

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Republic who entered the United States “as a legal permanent resident in 1992.” (Rec.

Doc. 1, ¶ 2). He acknowledges that an Immigration Judge (“IJ”) ordered his removal

from the United States on April 21, 2004 on the grounds that he was a controlled

substance offender and an aggravated felon. 

Petitioner contends that the IJ and thereafter, the Board of Immigration Appeals

(“BIA”) “committed legal error when it found Petitioner deportability [sic].” Id. at ¶ 1. 

Morillo claims that the ICE failed to satisfy its burden of proof of presenting clear and

convincing evidence in support of the proposed removal. Specifically, he asserts that

documentary evidence used by the ICE to establish proof of his criminal convictions

was insufficient. As relief, Morillo asks that this Court remand his case to the IJ for

further proceedings. Petitioner has also filed a motion requesting his immediate

release. For the reasons outlined below, Morillo’s action will be dismissed as a

second or successive Petition.

Discussion

Habeas corpus petitions are subject to summary dismissal pursuant to Rule 4

(“Preliminary Consideration by the Judge”) of the Rules Governing Section 2254

Cases in the United States District Courts, 28 U.S.C. foll. § 2254 (1977). See, e.g.,

Patton v. Fenton, 491 F. Supp. 156, 158-159 (M.D. Pa. 1979). Rule 4 provides, in

pertinent part: “If it plainly appears from the face of the petition and any exhibits

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annexed to it that the petitioner is not entitled to relief in the district court, the judge

shall make an order for its summary dismissal and cause the petitioner to be notified.” 

A petition may be dismissed without review of an answer “when the petition is

frivolous, or obviously lacking in merit, or where. . . the necessary facts can be

determined from the petition itself. . . .” Allen v. Perini, 424 F.2d 134,141 (6th Cir.

1970), cert. denied, 400 U.S. 906 (1970); accord Love v. Butler, 952 F.2d 10, 15 (1st

Cir. 1991). The Sixth Circuit Court of Appeals also stated that “the District Court has

a duty to screen out a habeas corpus petition which should be dismissed for lack of

merit on its face.” Allen, 424 F.2d at 141.

Prior to the 1996 amendments, 28 U.S.C. § 2244 authorized dismissal of a

successive habeas petition “that presented no new ground not heretofore presented

and determined.” McCleskey vs. Zant, 499 U.S. 467, 483 (1991). Section 2244

provided: 

(a) No circuit or district judge shall be required to entertain an

application for writ of habeas corpus to inquire into the detention

of a person pursuant to a judgment of a court of the United States

if it appears that the legality of such detention has been determined

by a judge or court of the United States on a prior application for

writ of habeas corpus and the petition presents no new ground not

heretofore presented and determined, and the judge or court is

satisfied that the ends of justice will not be served by such inquiry. 

The Supreme Court in McCleskey expanded § 2244 to also preclude a person

from raising a new claim in a subsequent habeas petition that he could have raised in

his first habeas petition:

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A petitioner may abuse the writ by failing to raise a claim through

inexcusable neglect. Our most recent decisions confirm that a

petitioner can abuse the writ by raising a claim in a subsequent

petition that he could have raised in his first, regardless of whether

the failure to raise it earlier stemmed from a deliberate choice. 

McCleskey, 499 U.S. at 489. 

Following the 1996 amendments, § 2244(b)(2) now provides:

(2) A claim presented in a second or successive habeas corpus

application under section 2254 that was not presented in a prior

application shall be dismissed unless–

(A) the applicant shows that the claim relies on a new rule of

constitutional law made retroactive to cases on collateral

review by the Supreme Court, that was previously

unavailable, or

(B) (i) the factual predicate for the claim could not have been

discovered previously through the existence of due diligence;

and

 (ii) the facts underlying the claim, if proven and viewed in the

light as a whole, would be sufficient to establish by clear and

convincing evidence that, but for constitutional error, no

reasonable fact finder would have found the applicant guilty

of the underlying offense.

(3) (A) Before a second or successive application permitted by this

section is filed in the district court. The applicant shall move

in the appropriate court of appeals for an order authorizing

the district court to consider the application.

On February 22, 2006, Morillo submitted a prior identical § 2241 Petition to this

Court. See Morillo v. United States District Court, Civil No. 4:CV-06-395. By Order

dated February 24, 2006, Petitioner’s initially filed action was transferred to the United

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States Court of Appeals for the Third Circuit pursuant to Section 106 of the REAL ID

Act of 2005, H.R. 1268, 109th Cong. (2005). The Third Circuit Court of Appeals was

deemed the appropriate transferee circuit since it previously entertained and denied

Morillo’s Petition for review from the BIA’s final order of removal. 

Based on this Court’s review of the pending habeas Petition and motion for

immediate release, those submissions are identical in all respects to Morillo’s prior

Petition and accompanying motion. It is apparent that in his present action, Morillo 

has simply substituted the District of Columbia for the Middle District of Pennsylvania

in the caption of his Petition and as the Respondent.

Petitioner has failed to show that his instant claims fall within the statutory

exceptions outlined above. Moreover, there is no indication that Morillo applied for

and was granted leave to file a second or successive habeas corpus petition by the

Third Circuit Court of Appeals. Under the requirements set forth in § 2244(b)(2), the

instant successive Petition cannot be entertained by this Court. 

NOW, THEREFORE, IT ORDERED THAT:

1. The Petition for Writ of Habeas Corpus is DISMISSED pursuant

to 28 U.S.C. § 2244(b)(2).

2. The show cause Order issued in this matter on April 6, 2005 is

hereby VACATED.

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3. The Clerk of Court is directed to CLOSE the case.

4. There is no basis for the issuance of a certificate of appealability.

s/ John E. Jones III

JOHN E. JONES III

United States District Judge

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