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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MARCEL MALACHOWSKI, §

#15287-052, §

Petitioner, §

§

 v. § No. 3:22-cv-01156-C (BT)

§

NFN RIVERS, §

§

 Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court is Petitioner Marcel Malachowski’s “Motion To 

Supplement” under Rule 59(e). (ECF No. 19.) For the reasons stated, the 

Court should DENY Malachowski’s motion.

I. 

Malachowski is a Bureau of Prisons (BOP) inmate at Seagoville 

Federal Correctional Institution (FCI) in Seagoville, Texas. He is currently 

serving concurrent sentences for convictions in two cases involving firearms, 

controlled substances, and immigration violations. 

On April 29, 2022, Malachowski filed a pro se petition for a writ of 

habeas corpus under 28 U.S.C. § 2241, in which he argued that 

“[c]larification” in Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019), 

demonstrates that he was “convicted” of “offenses to which he is otherwise 

innocent.” Mem. 21 (ECF No. 4). On May 23, 2023, the District Court 

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accepted the magistrate judge’s recommendation to dismiss Malachowski’s 

petition with prejudice because (1) his Rehaif claim failed to satisfy the 

savings clause; (2) he was not in custody on the conviction for which he 

sought habeas relief; and (3) his non-Rehaif claims did not satisfy the 

savings clause. Ord. (ECF No. 17). The District Court also entered a final 

judgment, J. (ECF No. 18), which Malachowski appealed to the Fifth Circuit 

Court of Appeals, (ECF No. 20.) 

Thereafter, on June 5, 2023, the Court received the pending “Motion 

To Supplement,” in which Malachowski argues he is entitled “to supplement 

his §2241 habeas petition with new evidence.” Id. at 1. The Court construes 

this motion as a request to reconsider its decision to dismiss Malachowski’s 

habeas petition.

II. 

A motion seeking reconsideration of a prior ruling is evaluated either 

as (i) a motion to alter or amend a judgment under Rule 59(e), or (ii) as a 

motion for relief from a final judgment, order, or proceeding or under Rule 

60(b). Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 n. 2 (5th Cir. 

2012). If the movant filed the motion within twenty-eight days after the entry 

of judgment, the Court treats the motion as though it was filed under Rule 

59; and if the movant filed the motion more than twenty-eight days after the 

entry of judgment, the Court analyzes it under Rule 60(b). Id. Here, 

Malachowski filed his motion on May 24, 2023, one day after the Court 

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entered its judgment on May 23, 2023.1 Therefore, the Court considers the 

motion under Rule 59. See Fed. R. Civ. P. 59(e) (“A motion to alter or amend 

a judgment must be filed no later than 28 days after the entry of the 

judgment.). 

Under Rule 59, the court may “open the judgment if one has been 

entered, take additional testimony, amend findings of fact and conclusions of 

law. . . and direct the entry of a new judgment.” Fed. R. Civ. P. 59(a)(2). When 

a court considers a Rule 59 motion, it is must recognize “the need to bring 

litigation to an end and the need to render decisions on the basis of all the 

facts” must be balanced. Ford v. Elsbury, 32 F.3d 931, 937 (5th Cir. 1994). A 

motion to alter or amend judgment under Rule 59(e) “serve[s] the narrow 

purpose of allowing a party ‘to correct manifest errors of law or fact or to 

present newly discovered evidence.’” Waltman v. Int’l Paper Co., 875 F.2d 

468, 473 (5th Cir. 1989) (quoting Keene Corp. v. Int’l Fidelity Ins. Co., 561 F. 

Supp. 656, 665 (N.D. Ill. 1982)). A manifest error of law is an error “that is 

plain and indisputable, and that amounts to a complete disregard of the 

controlling law.” Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 

2004) (internal quotation marks omitted). A court has considerable 

discretion in deciding whether to reopen a case under a Rule 59(e) motion. 

1 A prisoner’s pleading is deemed filed on the date it is delivered to prison 

officials for mailing to the clerk of court. Houston v. Lack, 487 U.S. 266, 276 

(1988). Here, Malachowski’s motion is signed and dated May 24, 2023. Mot. 

4 (ECF No. 19). 

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Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 

1993). 

III.

Malachowski asserts that “ICE” has determined he is not subject to 

deportation, and he is therefore “actually innocent” of illegal entry (counts 

three and five in his first case) . Mot. 3 (ECF No. 19) (citing 8 U.S.C. § 1359). 

Malachowski further states that on October 31, 2008, he “was found within 

the territorial limits of the Akwesasne Indian Reservation.” Id. (citing 

United States v. Wilson, 754 F. Supp. 2d 450 (2d Cir. 2010) (“people who 

enjoy . . . Indian status in the United States or Canada can cross freely and 

are not subject to inspection.”)). 

A § 2241 petition that attacks custody resulting from a federallyimposed sentence can be addressed under the savings clause of § 2255 if the 

petitioner demonstrates the remedy provided under § 2255 is “inadequate 

or ineffective to test the legality of his detention.” Padilla v. United States, 

416 F.3d 424, 426 (5th Cir. 2005) (citing Tolliver v. Dobre, 211 F.3d 876, 

878 (5th Cir. 2000)). A petitioner bears the burden of showing that the § 

2255 remedy is inadequate or ineffective. Id. (citing Wesson v. United States 

Penitentiary, Beaumont, TX, 305 F.3d 343, 347 (5th Cir. 2002)). The 

savings clause applies to a claim when: (i) the claim is based on a 

retroactively applicable Supreme Court decision which shows the petitioner 

may have been convicted of a nonexistent offense; and (ii) the Supreme 

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Court decision was foreclosed by circuit law at the time the claim should 

have been raised at the petitioner’s trial, on direct appeal, or in his first § 

2255 motion. Id.; see also Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 

2001). 

Malachowski’s actual innocence claim fails under the savings clause. 

Even if Malachowski could demonstrate that he was actually innocent of 

illegal reentry, as he argues, his claim still fails under the savings clause 

because he has not shown that the remedy under § 2255 “is inadequate or 

ineffective to test the legality of his detention.” See Padilla, 416 F.3d at 426. 

As this Court previously found, Malachowski failed to satisfy the savings 

clause because he failed to show that Rehaif is based on a retroactively 

applicable Supreme Court decision. FCR 5 (ECF No. 14) (“Rehaif is not 

retroactively applicable on collateral review.) See also In re Palacios, 931 

F.3d 1314, 1315 (11th Cir. 2019) (holding Rehaif “was not made retroactive 

to cases on collateral review by the Supreme Court”); Nixon v. United States, 

2019 WL 6498088, at *3 (N.D. Tex. Dec. 3, 2019) (same); Young v. United 

States, 2020 WL 1237402, at *2 (N.D. Tex. Feb. 18, 2020), rec. adopted, 

2020 WL 1236571 (N.D. Tex. Mar. 13, 2020) (same); United States v. 

Navarro, 2020 WL 709329, at *3 (S.D. Tex. Feb. 11, 2020) (same)). For 

these reasons, Malachowski has not shown that his claim satisfies the 

savings clause, and his Rehaif claim was properly dismissed. See Lang v. 

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Wilson, 2018 WL 684890, at *3 (N.D. Tex. Feb. 1, 2018) (citing Christopher 

v. Miles, 342 F.3d 378, 379, 385 (5th Cir. 2003)).

Malachowski further argues that he was “effectively precluded from 

mounting any defense about his immigration status,” which is “a necessary 

element of §922(g)(5).” Mot. 3 (ECF No. 19). Malachowski’s contends that: 

(1) evidence of his “Native Status” affords him protection and was 

improperly excluded by the trial court; and (2) his trial attorney provided 

ineffective assistance of counsel. Id. at 2. Both claims fail under the savings 

clause because Malachowski has failed to demonstrate either claim is based 

on a retroactively applicable Supreme Court decision showing that he may 

have been convicted of a nonexistent offense. FCR 8 (ECF No. 14) (citing 

Ball v. Conner, 83 F. App’x 621, 622 (5th Cir. 2003) (per curiam)). Both nonRehaif claims fail under the savings clause, and Malachowski’s petition was 

properly dismissed. See Christopher, 342 F.3d at 379, 385; Lang, 2018 WL 

684890, at *3. 

Last, Malachowski argues that “it is possible” to transfer the “Native 

Status” issue under 28 U.S.C. § 1631 (addressing a transfer to cure want of 

jurisdiction). Mot. 2 (ECF No. 19). According to Malachowski. “such 

evidence supports a reasonable conclusion that [he] received ineffective 

assistance of counsel in violation of the Sixth Amendment.” Id. But 

Malachowski has failed to show this claim is based on a retroactively 

applicable Supreme Court decision that shows he may have been convicted 

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of a nonexistent offense. Padilla, 416 F.3d at 426. This claim does not satisfy 

the savings clause, and Malachowski’s petition was properly dismissed. See 

Christopher, 342 F.3d at 379, 385; Lang, 2018 WL 684890, at *3. 

In sum, Malachowski’s arguments fail to demonstrate that he satisfies 

the savings clause under § 2255(e). For this reason, Malachowski is not 

entitled to relief from this Court’s judgment dismissing his § 2241 petition 

with prejudice. 

RECOMMENDATION

The Court should DENY Malachowski’s Rule 59(e) motion (ECF 

No. 19). 

SO RECOMMENDED.

July 28, 2023.

 ____________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

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INSTRUCTIONS FOR SERVICE AND 

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk is directed to serve a true copy of 

these findings, conclusions, and recommendation on the parties. Pursuant 

to Title 28, United States Code, Section 636(b)(1), any party who desires to 

object to these findings, conclusions, and recommendation must serve and 

file written objections within 14 days after being served with a copy. A party 

filing objections must specifically identify those findings, conclusions, or 

recommendation to which objections are being made. The District Court 

need not consider frivolous, conclusory, or general objections. A party’s 

failure to file such written objections to these proposed findings, 

conclusions, and recommendation will bar that party from a de novo 

determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150 

(1985). Additionally, any failure to file written objections to the findings,

conclusions, and recommendation within 14 days after being served with a 

copy will bar the aggrieved party from appealing the factual findings and 

legal conclusions of the Magistrate Judge that are accepted by the District 

Court, except upon grounds of plain error. See Douglass v. United Services 

Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).

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