Ogunwomoju v. U.S.

• Citation: 512 F.3d 69
• Decision Date: 07 January 2008
• Docket Number: Docket No. 06-4424-ag.,Docket No. 06-3734-pr.
• Parties: Adeniyi OGUNWOMOJU, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Adeniyi Ogunwomoju, Petitioner, v. People of the State of New York, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

512 F.3d 69

Adeniyi OGUNWOMOJU, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Adeniyi Ogunwomoju, Petitioner, v. People of the State of New York, Respondent.

Docket No. 06-3734-pr.

Docket No. 06-4424-ag.

United States Court of Appeals, Second Circuit.

Submitted: September 19, 2007.

Decided: January 7, 2008.

Ogunwomoju Adeniyi, Gardens, NY, pro se.

Sue Chen, Special Assistant United States Attorney (Michael J. Garcia, United States Attorney for the Southern District of New York; David S. Jones, Assistant United States Attorney, on the brief), New York, NY.

Before: MESKILL,¹ MINER, and CABRANES, Circuit Judges.

MINER, Circuit Judge:

The question presented, one of first impression for this Court, is whether a petitioner in immigration detention or under an order of removal as a consequence of a state conviction is "in custody" within the meaning of the statute providing for a writ of habeas corpus to challenge such a conviction. We join our sister circuits that have considered the issue in holding that immigration detention is not "custody" for the purposes of establishing jurisdiction to consider habeas petitions challenging a state court conviction pursuant to 28 U.S.C. § 2254.

Adeniyi Ogunwomoju, ("petitioner" or "Ogunwomoju") a citizen of Nigeria, filed the petition which forms the basis of the two captioned cases in March of 2006 while he was in immigration detention. The petition was correctly designated as a habeas petition pursuant to 28 U.S.C. § 2254 by the United States District Court for the Southern District of New York, where the petition was filed. Pursuant to 28 U.S.C. § 2241(d), a petition for a writ of habeas corpus challenging a conviction in state court may be filed "in the district court for the district within which the State Court was held which convicted and sentenced him." Because Ogunwomoju's petition challenges his conviction in the Criminal Court of the City of New York ("Criminal Court") of criminal possession of a controlled substance, it was properly filed in the District Court for the Southern District of New York ("District Court"). We construe this petition and Ogunwomoju's subsequent motion² as a habeas petition rather than as a petition for review of an order of removal. A timely appeal from the June 15, 2006 judgment of the District Court (Michael B. Mukasey, Chief Judge)³ dismissing that petition confers upon us jurisdiction to review that judgment. 28 U.S.C. § 1291.

I.

Ogunwomoju filed this petition after removal proceedings were held as a direct consequence of his several criminal convictions. From March 11, 2004 through July 20, 2004, the United States Department of Homeland Security ("DHS") filed multiple charges of removability against Ogunwomoju pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of crimes of moral turpitude;⁴ 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony;⁵ and 8 U.S.C. § 1227(a)(2)(B)(i), for having been convicted of criminal possession of a controlled substance.⁶

Ogunwomoju's removal proceedings were heard in York, Pennsylvania by an Immigration Judge who denied Ogunwomoju's application for asylum, withholding of removal, and protection under the Convention Against Torture and ordered Ogunwomoju's removal to Nigeria. In re Ogunwomoju, No. A 41 542 092 (I.J. York, PA Sept. 8, 2004). The BIA affirmed the decision of the Immigration Judge without opinion on February 14, 2005. In re Ogunwomoju, No. A 41 542 092 (B.I.A. Feb. 14, 2005). On August 3, 2005, in response to Ogunwomoju's motion to reopen and reconsider its order of removal, the BIA remanded the case to the Immigration Judge to allow Ogunwomoju to pursue an application for relief under Section 212(c) of the Immigration and Naturalization Act, 8 U.S.C. § 1182(c). In re Ogunwomoju, No. A 41 542 092 (B.I.A. Aug. 3, 2005). Section 212(c), which was repealed in 1996 pursuant to the Illegal Immigration Reform and Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, Div. C. Title III-A, 110 Stat. § 304(b), 3009-546, 3009-597, conferred broad jurisdiction upon the Attorney General to waive deportation under certain conditions for aliens "convicted of offenses involving moral turpitude or the illicit traffic in narcotics" who had entered guilty pleas prior to its repeal. I.N.S. v. St. Cyr, 533 U.S. 289, 294, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).

On October 11, 2005, the Immigration Judge on remand determined that Ogunwomoju was ineligible for such relief because his drug conviction in the Criminal Court occurred after the repeal of Section 212(c) and because the New York courts had not yet ruled on Ogunwomoju's post-conviction challenge to that conviction. In re Ogunwomoju, No. A 41 542 092 (I.J. York, PA Oct. 11, 2005). Ogunwomoju apparently believes that were it not for his 2000 drug conviction in the Criminal Court, he would be eligible for Section 212(c) relief because his other convictions predated the 1996 repeal of Section 212(c) and because the Immigration Judge referred only to the drug conviction as an impediment to Ogunwomoju's eligibility for Section 212(c) relief. Id.

Reviewing the Immigration Judge's decision following remand, the BIA on December 27, 2005 concluded that it erroneously had granted Ogunwomoju's motion to reopen, vacated its decision of August 3, 2005, and denied nunc pro tunc the motion to reopen. In re Ogunwomoju, No. A 41 542 092 (B.I.A. Dec. 27, 2005). The BIA denied petitioner's subsequent motion to reopen on February 17, 2006. In re Ogunwomoju, No. A 41 542 092 (B.I.A. Feb. 17, 2006). Ogunwomoju sought review of the December 27, 2005 BIA decision in the United States Court of Appeals for the Third Circuit, which on December 7, 2006 dismissed as time-barred Ogunwomoju's petition to consider the original denial of asylum, withholding of removal, and CAT relief and denied his petition to review the BIA's denial of his motion to reopen. See Ogunwomoju v. Att'y Gen. of the U.S., 207 Fed.Appx. 245, 248 (3d Cir.2006).⁷

As a result of the judgment of the Court of Appeals for the Third Circuit, Ogunwomoju's immigration claims have been thoroughly litigated and they have been conclusively decided against him.

II.

While in immigration detention seeking relief from the immigration decisions through the BIA and Court of Appeals for the Third Circuit, Ogunwomoju also sought, without success, post-conviction relief from his March 7, 2000 drug conviction in the Criminal Court. After exhausting his options in the New York state courts, he filed a habeas petition in the District Court in March 2006, challenging the conviction entered in the Criminal Court.

In challenging his conviction for criminal possession of a controlled substance in the seventh degree, which entailed a sentence of time served and a six-month suspension of his driver's license, Ogunwomoju advanced the following arguments in his habeas petition: (1) that his plea of guilty was "unlawfully induced or not made voluntarily with understanding of the nature of the charge and the consequences of the plea"; (2) that trial counsel was ineffective for "waiv[ing] a formal plea allocution" and for failing to "advise him of the effect his plea would have on his immigration status;" and (3) that the evidence seized from him was taken in violation of the Fourth Amendment, since at the time of his arrest "he was merely sitting in a parked automobile and was not engaging in any suspicious activity."

On June 15, 2006, Chief Judge Mukasey, inter alia, dismissed the habeas petition, finding no basis for the relief sought under 28 U.S.C. § 2254. Specifically, Chief Judge Mukasey found that Ogunwomoju was in immigration custody and not in custody pursuant to the challenged criminal conviction. The sentence for the drug conviction had been fully served by the time Ogunwomoju filed his habeas petition. The Court therefore determined that it lacked jurisdiction to consider his habeas petition. Ogunwomoju v. New York, 06-cv-4599, *2 (S.D.N.Y. June 15, 2006). The Court also considered and rejected coram nobis relief as an alternative remedy. Id. at *2-3. Finding that Ogunwomoju had not made a substantial showing of the denial of a constitutional right, the District Court declined to issue a certificate of appealability in accordance with 28 U.S.C. § 2253. Id. at *4. Finally, the District Court certified, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from the court's order would not be taken in good faith and, accordingly, revoked Ogunwomoju's in forma pauperis status. A Notice of Appeal was timely filed on July 6, 2006.

III.

In order for a District Court to entertain a petition for habeas relief, the application for relief must be made "in behalf of a person in custody pursuant to the 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 supplied). A petitioner must be "in custody" in order to invoke habeas jurisdiction of the federal courts. Custody

is required not only by the repeated references in the statute but also by the history of the great writ. Its province, shaped to guarantee the most fundamental of all rights, is to provide an effective and speedy instrument by which judicial inquiry may be had into the legality of the detention of a person.

Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) (internal citations omitted). In Carafas, the petitioner was incarcerated under the state sentence he sought to attack when he filed his petition for habeas relief. Id. at 235-36, 88 S.Ct. 1556. He was unconditionally discharged from custody while his appeal was pending, and the state then claimed that his discharge rendered further proceedings moot. Id. at 236, 88 S.Ct. 1556. The Supreme Court rejected that argument, noting, inter alia, that "collateral consequences" of conviction, such as...