Resendiz v. Kovensky

• Citation: 416 F.3d 952
• Decision Date: 27 June 2005
• Docket Number: No. 03-55136.,03-55136.
• Parties: Hugo Rangel RESENDIZ, Petitioner-Appellant, v. Leonard KOVENSKY, Acting Director, Immigration and Naturalization Service, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

416 F.3d 952

Hugo Rangel RESENDIZ, Petitioner-Appellant, v. Leonard KOVENSKY, Acting Director, Immigration and Naturalization Service, Respondent-Appellee.

No. 03-55136.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 2005.

Filed June 27, 2005.

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Phillip A. Trevino, Los Angeles, CA, for the petitioner-appellant.

Frank M. Travieso, Assistant United States Attorney, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; Percy Anderson, District Judge, Presiding. D.C. No. CV-02-00104-PA.

Before: SCHROEDER, Chief Judge, PREGERSON, and TROTT, Circuit Judges.

TROTT, Circuit Judge:

OVERVIEW

Hugo Rangel Resendiz appeals the district court's dismissal of two petitions for habeas corpus — one under 28 U.S.C. § 2254, naming the State of California as the respondent, and a second under 28 U.S.C. § 2241 against the Bureau of Immigration and Naturalization Service ("INS").¹ We have jurisdiction pursuant to 28 U.S.C. § 2253.

We conclude that (1) Resendiz was not "in custody pursuant to the judgment of a State court" when he filed his § 2254 petition, and he is not entitled to an exception from the in custody requirement; (2) the district court did not err in construing Resendiz's § 2254 petition as a petition against the INS under § 2241 rather than as one for a writ of coram nobis; and (3) the enactments of the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) do not change the long standing principle that a petitioner may not collaterally attack his state court conviction in a § 2241 petition against the INS. Accordingly, we affirm.

BACKGROUND

Resendiz was a lawful permanent resident when he pled guilty to narcotics offenses in the Orange County Superior Court on June 30, 1997. In re Resendiz, 25 Cal.4th 230, 235, 105 Cal.Rptr.2d 431, 19 P.3d 1171 (2001). Resendiz claims that before entering his plea, he expressed concern to his attorney, Leonard Basinger, about losing his green card as a result of the offense. Basinger inaccurately informed Resendiz that the guilty plea would not adversely affect his immigration status. The state court judge informed Resendiz and five other defendants that their convictions could result in deportation, but Resendiz nevertheless took Basinger's erroneous advice and pled guilty. See id. at 235-37, 105 Cal.Rptr.2d 431, 19 P.3d 1171.

As a result of his plea, the state trial court sentenced Resendiz to 180 days imprisonment and three years probation, with credit for time served. In addition California Health and Safety Code section 11590 required Resendiz to register as a narcotics offender for a period of five years subsequent to the completion of his three year probation term.

While Resendiz was serving his state sentence, the INS served him with a Notice to Appear, which declared that he was a removable alien due to his conviction for a narcotics offense, which qualified as an aggravated felony under 8 U.S.C. § 1227(a)(2)(B)(i) and (a)(2)(A)(iii). Consequently, on a date not clear from the record, Resendiz was transferred to INS custody at the completion of his 180 days in state custody. Id. at 236, 105 Cal.Rptr.2d 431, 19 P.3d 1171.

While in INS custody and represented by new counsel, Resendiz began pursuing state court relief on the grounds that Basinger provided ineffective assistance of counsel in violation of the Sixth Amendment by telling Resendiz that his guilty plea would not affect his immigration status. Id. Resendiz's state remedies remained unexhausted until April 2, 2001, when the California Supreme Court issued its decision. Id. The state court concluded that even assuming Basinger's performance was constitutionally deficient, Resendiz failed to show prejudice because he failed to show that he would have proceeded to trial absent the erroneous advice. Id. at 252-54, 105 Cal.Rptr.2d 431, 19 P.3d 1171. By the time the state court issued its final decision, Resendiz's state sentence of 180 days and 3 years probation, imposed in 1997, had long since expired.

Nevertheless, Resendiz filed a § 2254 habeas petition in the district court in February of 2002, naming the State as respondent. The district court dismissed the petition because Resendiz was no longer "in custody pursuant to the judgment of a State court." Because Resendiz was in INS custody, however, the court construed the petition as a § 2241 petition and granted Resendiz leave to amend to allow him to name the Director of the INS as the proper respondent. Resendiz objected to the construction of his petition as a § 2241 petition, arguing that the State was the proper respondent. After objecting, Resendiz amended the petition, naming the INS as the respondent, but he continued to assert that the ineffective assistance of counsel during the state proceedings provided grounds for relief.

Sympathizing with Resendiz's unfortunate procedural situation, the district court nonetheless concluded that it lacked jurisdiction over the § 2241 petition and reaffirmed its earlier decision to dismiss the § 2254 petition. The court determined that, pursuant to our decision in Contreras v. Schiltgen, 122 F.3d 30 (9th Cir.1997), aff'd on add'l grounds in Contreras v. Schiltgen, 151 F.3d 906 (9th Cir.1998) (Contreras II), the state conviction could not be collaterally attacked in a § 2241 petition against the INS, and that Resendiz's petition thus provided no grounds for relief. Moreover, the district court concluded that because Resendiz was no longer in custody pursuant to the state court judgment, it lacked jurisdiction over the § 2254 petition that otherwise would have been available to attack the state conviction. Thus, Resendiz was without federal review.

We granted a certificate of appealability on two issues: (1) whether Resendiz's pending deportation on the grounds of his state conviction can be construed as "custody pursuant to the judgment of a State court," and (2) whether the district court erred in construing Resendiz's § 2254 petition as a proceeding against the INS under § 2241. Resendiz briefed additional, related issues here and requests that we broaden the certificate of appealability. We address each of his contentions in turn.

DISCUSSION

A. Standard of Review

We review the district court's dismissal of a petition for a writ of habeas corpus de novo. Hunt v. Pliler, 384 F.3d 1118, 1123 (9th Cir.2004).

B. Analysis

Resendiz makes five arguments in his attempt to secure elusive federal review: (1) that he satisfies § 2254's "in custody pursuant to the judgment of a state court" requirement because his transfer to INS custody, after serving a state sentence for a drug trafficking crime, was the direct and mandatory consequence of the state court judgment; (2) that California's mandatory narcotics offender registration law satisfies the "in custody" requirement of § 2254; (3) that he is entitled to an exception from the "in custody" requirement of § 2254; (4) that the district court erred in construing the § 2254 petition as a petition against the INS under § 2241 and should have construed it as a petition for a writ of coram nobis; and (5) that we should revisit the holding of Contreras and conclude that the state court conviction may be collaterally attacked through his § 2241 petition.

1. Custody Requirement of § 2254

Pursuant to 28 U.S.C. § 2254(a), "[t]he Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus 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." (emphasis added). This "in custody" requirement has been interpreted to mean that federal courts lack jurisdiction over habeas corpus petitions unless the petitioner is "under the conviction or sentence under attack at the time his petition is filed." Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (per curiam).

It is well-established that "once the sentence imposed for a conviction has completely expired, the collateral consequences of the conviction are not themselves sufficient to render an individual `in custody' for the purposes of a habeas attack upon it." Id. at 492, 109 S.Ct. 1923 (emphasis added); Feldman v. Perrill, 902 F.2d 1445 (9th Cir.1990) (interpreting Maleng and concluding that under Maleng, even when collateral consequences significantly harm habeas petitioners, the harm is not the relevant "in custody" inquiry). Immigration consequences, such as deportation, have long been viewed as "collateral," and thus are not themselves sufficient to render an individual "in custody." See Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir.1976) (holding that immigration consequences — deportation — of a criminal conviction are collateral consequences because "the consequence in issue `was not the sentence of the court which accepted the plea but of another agency over which the trial judge has no control and for which he has no responsibility'" (citation omitted)). While Maleng noted that collateral consequences could prevent a petition — filed while the petitioner was in state custody — from becoming moot after a petitioner is released from custody, Maleng foreclosed any argument that collateral consequences could satisfy the in custody requirement for a petition filed after the expiration of the state sentence. See 490 U.S. at 492, 109 S.Ct. 1923.

Recognizing that collateral consequences are insufficient, Resendiz argues that immigration consequences can no longer be considered collateral. He points out that the AEDPA and IIRIRA eliminated the small amount of discretion in the Executive and Judicial Branches when dealing with individuals convicted of the offenses for which Resendiz...