2002 Decisions

Opinions of the United

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Precedential or Non-Precedential: Non-Precedential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
 NOT PRECEDENTIAL 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