Contreras v. Schiltgen

• Citation: 151 F.3d 906
• Decision Date: 07 August 1998
• Docket Number: No. 96-15577,96-15577
• Parties: 98 Cal. Daily Op. Serv. 6213 Jose CONTRERAS, Petitioner-Appellant, v. Ted SCHILTGEN, District Director; Immigration and Naturalization Service; United States Department of Justice, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 906

151 F.3d 906

98 Cal. Daily Op. Serv. 6213

Jose CONTRERAS, Petitioner-Appellant, v. Ted SCHILTGEN, District Director; Immigration and Naturalization Service; United States Department of Justice, Respondents-Appellees.

No. 96-15577.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 11, 1996.

Decided July 31, 1997.

Reargued and Submitted June 17, 1998.

Decided Aug. 7, 1998.

Norton Tooby, Oakland, CA, for petitioner-appellant.

Glyndell E. Williams, Special Assistant U.S. Attorney, Sacramento, CA, Donald E. Keener, Deputy Director, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for respondents-appellees.

Appeal from the United States District Court for the Eastern District of California Edward J. Garcia, District Judge, Presiding. D.C. No. CV-94-02047-EJG/GGH.

Before: WOOD, ^* SCHROEDER, and HALL, Circuit Judges.

SCHROEDER, Circuit Judge:

This is a 28 U.S.C. § 2241 habeas corpus proceeding against the Immigration and Naturalization Service. The petitioner Jose Contreras challenges his INS detention pending completion of deportation proceedings. Contreras is charged with being deportable under 8 U.S.C. § 1227(a) ¹ on the basis of his prior California conviction for assault with a firearm. He claims the state court conviction is not valid because defense counsel was ineffective in advising him to plead guilty.

The issue is the district court's jurisdiction to consider an attack on the state court conviction after the sentence on that count has completely expired. In our original opinion, we affirmed the district court's dismissal of the petition, holding that "Contreras may not collaterally attack his state court conviction in a habeas proceeding against the INS." Contreras v. Schiltgen, 122 F.3d 30, 31-32 (9th Cir.1997). We reasoned that the INS may rely on the validity of the state court conviction until it is overturned in collateral proceedings against the state. We acknowledged, however, that § 2254 proceedings against the state appear to be foreclosed by the expiration of the state sentence. Id. at 33 (citing Maleng v. Cook, 490 U.S. 488, 492, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989)).

We granted rehearing because of an apparent conflict between our opinion and the decision of this court in Feldman v. Perrill, 902 F.2d 1445 (9th Cir.1990). See also Brock v. Weston, 31 F.3d 887 (9th Cir.1994) (following Feldman in another context).

The petitioner in Feldman was a federal prisoner serving a sentence that had been enhanced by a prior state conviction. We held that he could maintain a § 2241 habeas action against the federal official detaining him in order to attack the validity of the state court conviction, even though the state sentence had expired. See 902 F.2d at 1448-49.

Subsequent to Feldman, the Supreme Court decided Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), which restricted collateral review of prior convictions. The defendant in Custis was convicted of a federal crime and faced an enhanced sentence under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e) (ACCA), on account of prior state convictions. That statute provides a mandatory minimum sentence of 15 years for any person who "has three previous convictions ... for a violent felony or a serious drug offense." 18 U.S.C. § 924(e)(1). Custis attempted to challenge the validity of the state convictions during the federal sentencing proceeding. The Court held that a defendant in a federal sentencing hearing has no right to challenge the validity of a prior state conviction used for enhancement purposes, unless the conviction was obtained in violation of the Gideon right to counsel. See 511 U.S. at 496, 114 S.Ct. 1732 (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)). The Court reasoned that the ACCA requires enhancement on the basis of the fact of prior convictions and does not permit a sentencing court to second-guess the validity of those convictions. See id. at 491, 114 S.Ct. 1732.

We interpreted Custis in Clawson v. United States, 52 F.3d 806 (9th Cir.1995), where we considered whether a petitioner could use 28 U.S.C. § 2255 to challenge the federal court's reliance on an allegedly invalid state court conviction to enhance a federal sentence. We read Custis to bar federal habeas review of the validity of a prior conviction used for federal sentencing enhancement unless the petitioner raises a Gideon claim. The circuits are divided on the interpretation of Custis in the habeas context. The Eighth Circuit, in line with Clawson, has held that Custis bars habeas challenges of prior convictions used for federal sentence enhancement. See Arnold v. United States, 63 F.3d 708, 709 (8th Cir.1995). The Third Circuit, by contrast, has distinguished between collateral challenges made at sentencing and those brought by way of a habeas attack on an enhanced sentence. Young v. Vaughn, 83 F.3d 72, 77 (3d Cir.1996). The Third Circuit read Custis as limited to the context of sentencing proceedings and permitted a federal habeas challenge to an expired sentence used to enhance a federal sentence. Id.

Feldman was decided before Custis. Although Feldman appears to authorize federal review of the constitutionality of state convictions relied upon by federal courts to enhance federal sentences, its reach has clearly been narrowed by Custis. Under Custis, as interpreted by Clawson, we must hold that when a habeas...