358 F.3d 1251 (10th Cir. 2004), 02-6419, Broomes v. Ashcroft

Docket Nº:02-6419, 03-1063.
Citation:358 F.3d 1251
Party Name:Errol L. BROOMES, Petitioner-Appellant, v. John ASHCROFT, Attorney General, Brooklyn District Attorney; Honorable Charles Hynes, Respondents-Appellees. Asfaw Mekonnen Abtew, Petitioner-Appellant, v. United States Department of Justice; Immigration & Naturalization Service, Respondents-Appellees.
Case Date:February 17, 2004
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1251

358 F.3d 1251 (10th Cir. 2004)

Errol L. BROOMES, Petitioner-Appellant,


John ASHCROFT, Attorney General, Brooklyn District Attorney; Honorable Charles Hynes, Respondents-Appellees.

Asfaw Mekonnen Abtew, Petitioner-Appellant,


United States Department of Justice; Immigration & Naturalization Service, Respondents-Appellees.

Nos. 02-6419, 03-1063.

United States Court of Appeals, Tenth Circuit

February 17, 2004

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Submitted on the briefs. [*] Michael A. Scaperlanda of College of Law University of Oklahoma, Norman, OK, on the briefs

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for Petitioners-Appellants in No. 02-6419 & No. 03-1063.

Charles J. Hynes, District Attorney, Kings County, NY, and Leonard Joblove and Amy Appelbaum, Assistant District Attorneys of Counsel, Brooklyn, NY, on the brief for Respondent-Appellee Charles Hynes in No. 02-6419.

John W. Suthers, United States Attorney, and John M. Hutchins, Assistant United States Attorney, Denver, CO, on the briefs for Respondents-Appellees in No. 03-1063.

Before EBEL, Circuit Judge, BRORBY, Senior Circuit Judge, and BRISCOE, Circuit Judge.

BRORBY, Senior Circuit Judge.

The appellants in this consolidated appeal are lawful permanent residents facing deportation as a result of criminal convictions. They seek habeas corpus relief on grounds they received ineffective assistance of counsel when their respective attorneys failed to adequately advise them of the possible immigration consequences of pleading guilty. We consolidated these cases for procedural purposes, appointed counsel, and granted a certificate of appealability limited to three issues: (1) whether the district court may review an expired state conviction under 28 U.S.C. § 2241 where that conviction serves as a predicate for Immigration and Naturalization Service detention; (2) whether counsel renders ineffective assistance by failing to advise a client of the deportation consequences that arise when a conviction is entered; and (3) whether the appellants demonstrated prejudice under the second prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the judgments of the district courts dismissing Mr. Broomes' 28 U.S.C. § 2254 claim and Mr. Abtew's 28 U.S.C. § 2241 claim. For the reasons provided herein, we deny Mr. Abtew's request for a certificate of appealability on his § 2254 claim and dismiss such claim on appeal.

No. 03-1063, Abtew v. Immigration & Naturalization Service

Asfaw Abtew, an immigrant from Ethiopia, is awaiting an Immigration and Nationalization Service ruling on whether he will be deported from the United States based on his two criminal convictions. The convictions were entered after he pleaded guilty in Colorado state court to third degree sexual assault and contributing to the delinquency of a minor. Mr. Abtew received two years probation for the sexual assault conviction and four years deferred sentence for the contribution conviction. Two years later, Mr. Abtew attempted to withdraw his guilty pleas through a state post-conviction action, arguing his counsel acted ineffectively by failing to adequately advise him of the immigration consequences of pleading guilty. The Colorado district court denied relief on the merits, and the Colorado Court of Appeals affirmed, also on the merits. On April 29, 2002, the Colorado Supreme Court denied certiorari, resulting in the full exhaustion of Mr. Abtew's state remedies. In 2000, during the pendency of his state post-conviction proceedings, Mr. Abtew's sentences expired.

Raising the same ineffective assistance of counsel argument, Mr. Abtew sought habeas relief from the federal courts pursuant to 28 U.S.C. § 2241. The district court denied his petition, noting that because he was represented by counsel in state court and his state court convictions expired, the validity of his convictions was not subject to review under § 2241. It also held Mr. Abtew did not satisfy the jurisdictional "in custody" requirement for review under 28 U.S.C. § 2254. Mr. Abtew appeals these determinations.

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Mr. Abtew first asks us to review his state court convictions under § 2254. He points out he is a member of a class of possible petitioners who cannot seek habeas relief because, based on the shortness of their sentence, they cannot satisfy both the "in custody" and exhaustion requirements. Mr. Abtew asks us to adopt a rule excusing habeas petitioners from the "in custody" requirement if, like him, they were diligently pursuing state court relief when their convictions expired.

Because Mr. Abtew's certificate of appealability does not encompass this issue, we construe his brief as an application for a certificate of appealability. Accordingly, he must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Section 2254 states the federal courts "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to a judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (emphasis added). The "in custody" language of § 2254 is jurisdictional and requires habeas petitioners to be "in custody" under the conviction or sentence under attack when they file the petition. Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989).

In Maleng, the Supreme Court held once a prisoner's sentence expires, he is no longer "in custody" under that conviction sufficient for the court to exercise jurisdiction to hear a habeas petition under § 2254. 490 U.S. at 492, 109 S.Ct. 1923. The Court further addressed the issue in Lackawanna County District Attorney v. Coss, 532 U.S. 394, 403-04, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001), where it stated:

[O]nce a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained.

(Citation omitted). The only exceptions exist when: 1) counsel is not appointed in violation of the Sixth Amendment; or 2) no channel of review is available through no fault of the petitioner. Id. at 404-05, 121 S.Ct. 1567; Daniels v. United States, 532 U.S. 374, 382-84, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001).

Mr. Abtew is not currently "in custody pursuant to a judgment of a State court," but rather is in federal custody awaiting a final removal determination by the Immigration and Naturalization Service. Moreover, Mr. Abtew does not raise, nor does he meet, the two "in custody" requirement exceptions. He therefore is not entitled to review under § 2254.

As to the issue of exhaustion, Mr. Abtew artfully attempts to overcome the "in custody" requirement by carving out a new exemption, excusing the requirement for those who, like him, were diligently pursuing state court relief when their convictions or sentences expired. However, the "in custody" jurisdictional requirement is statutorily set and the question of who is entitled to habeas review is a policy determination to be made by the legislature rather than the judiciary. Moreover, the Supreme Court's judicial interpretation of the applicable statutes has squarely set out only two exceptions, of which Mr. Abtew meets neither. For these reasons, Mr. Abtew has not demonstrated reasonable jurists would find the district court's assessment

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of his constitutional claims debatable or wrong. Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Thus, we deny Mr. Abtew a certificate of appealability as to this issue.

Next, Mr. Abtew asks us to review his state court convictions under § 2241. 1 As previously mentioned, the district court held Mr. Abtew could not challenge his state court convictions under § 2241 because they expired. Mr. Abtew argues the district court should have reviewed his state court convictions because they serve as the predicate to his Immigration and Naturalization Service detention.

We review the...

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