Calderon-Rodriguez v. Terry, 111413 FED10, 13-2107

Docket Nº:13-2107
Party Name:GERMAN CALDERON-RODRIGUEZ, Petitioner-Appellant, v. RAY TERRY, Warden of Otero County Processing Center, in his official capacity, Respondent-Appellee.
Judge Panel:Before KELLY, TYMKOVICH, and PHILLIPS, Circuit Judges.
Case Date:November 14, 2013
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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GERMAN CALDERON-RODRIGUEZ, Petitioner-Appellant,

v.

RAY TERRY, Warden of Otero County Processing Center, in his official capacity, Respondent-Appellee.

No. 13-2107

United States Court of Appeals, Tenth Circuit

November 14, 2013

(D.C. No. 2:12-CV-00691-JB-ACT) (D. N.M.)

Before KELLY, TYMKOVICH, and PHILLIPS, Circuit Judges.

ORDER DENYING CERTIFICATE OF APPEALABILITY [*]

German Calderon-Rodriguez, a native and citizen of Mexico, seeks a certificate of appealability (COA) to appeal from the district court's order dismissing his habeas petition. We deny a COA and dismiss this appeal.

Background

Calderon-Rodriguez was admitted to the United States as a lawful permanent resident in 2003. By 2012, he had garnered state-court convictions for "Assault - Family, " R. at 31, and aggravated assault with a deadly weapon. The Department of Homeland Security (DHS) detained Calderon-Rodriguez and initiated removal proceedings.

In response, Calderon-Rodriguez filed in federal district court a pro se "Petition under 28 U.S.C. § 2241 for a Writ of Habeas Corpus & 2254, or May Be Construed as a Writ of Coram Nobis if Appropriate." Id. at 4. The petition listed four grounds for relief: (1) deportation proceedings against him should be stayed because pro se alien detainees lack sufficient time to attack a criminal conviction; (2) "the state court judge [in the aggravated-assault case] denied him an indigent appointed counsel . . . but only appointed an ad litem to assist him in finding a private lawyer, " id. at 8; (3) his ad litem attorney, who was in fact later appointed as defense counsel, provided ineffective assistance regarding the immigration consequences of pleading no contest to aggravated assault; and (4) if DHS deports him before he appeals his aggravated-assault conviction, his case would be moot. The government answered and moved to dismiss. Calderon-Rodriguez then filed a reply and two more habeas petitions, each adding new grounds for relief. He also indicated that he was subject to a final order of removal and that he intended to appeal to the Board of Immigration Appeals (BIA).

The district court granted the government's motion to dismiss. In doing so, it found that the new grounds were untimely and had been asserted without the government's consent or without leave of court in violation of Fed.R.Civ.P. 15(a)(1) & (2). As for the grounds in the...

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