Ong Vue v. Allbaugh, 682 F. App'x 636

Ong Vue, an Oklahoma state prisoner, pleaded no contest in 1998 to first-degree murder and two counts of shooting with intent to kill; sentenced June 1, 1998 (life + two concurrent 20-year terms, one later ordered concurrent with life for review purposes).
He did not withdraw his plea or appeal; under Oklahoma law his conviction became final ten days after sentencing (June 11, 1998).
Vue filed a federal habeas petition in August 2016, challenging his conviction and seeking cancellation of a 1999 immigration removal order.
The district court construed his filing as a § 2254 petition and dismissed it as time-barred under AEDPA’s one-year statute of limitations; Vue sought a certificate of appealability (COA).
Vue also sought district-court review/cancellation of the 1999 removal order, which he never appealed to the Board of Immigration Appeals (BIA).
The Tenth Circuit denied the COA and dismissed the appeal, finding the habeas petition untimely and the district court lacked jurisdiction to review the unexhausted removal order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of habeas petition under AEDPA § 2244(d)(1)(A)	Vue: AEDPA’s 1-year limit is an unconstitutional suspension of the writ	Government: Conviction became final June 11, 1998; AEDPA bar applies and petition filed in 2016 is untimely	Petition is time-barred; AEDPA limitation applies; COA denied
Application of equitable tolling or other exceptions	Vue: did not assert equitable tolling or actual innocence; argued only constitutional defect in AEDPA	Government: no statutory or equitable tolling shown, no actual innocence claim	No tolling; dismissal proper
District-court jurisdiction to review 1999 removal order	Vue: seeks cancellation of removal order based on changed circumstances and rehabilitation	Government: § 1252(a)(5) vests exclusive judicial review in court of appeals; district courts lack jurisdiction; Vue failed to exhaust BIA remedies	District court lacked jurisdiction; review must be in court of appeals after BIA exhaustion
Transfer to proper court under 28 U.S.C. § 1631	Vue: implicitly asked remedy; not argued to transfer	Government: transfer requires exhaustion and interest of justice; petitioner did not exhaust BIA remedies	Transfer inappropriate because administrative remedies were not exhausted; appellate review unavailable

Slack v. McDaniel, 529 U.S. 473 (U.S. 2000) (COA standard when district court dismisses on procedural grounds)
Miller v. Marr, 141 F.3d 976 (10th Cir. 1998) (AEDPA statute of limitations generally applicable absent tolling or actual innocence)
Clayton v. Jones, 700 F.3d 435 (10th Cir. 2012) (Oklahoma conviction final ten days after sentencing when no timely motion to withdraw plea or appeal)
Schmitt v. Maurer, 451 F.3d 1092 (10th Cir. 2006) (district courts lack jurisdiction over habeas petitions challenging orders of removal)
Berrum-Garcia v. Comfort, 390 F.3d 1158 (10th Cir. 2004) (§ 1631 transfer may cure jurisdictional error in some removal challenges)
Duran-Hernandez v. Ashcroft, 348 F.3d 1158 (10th Cir. 2003) (approving transfer under § 1631 and treating transferred filing as petition for review of removal)
Sidabutar v. Gonzales, 503 F.3d 1116 (10th Cir. 2007) (failure to appeal to BIA constitutes failure to exhaust administrative remedies)
Molina v. Holder, 763 F.3d 1259 (10th Cir. 2014) (court lacks jurisdiction to consider unexhausted claims challenging removal)
Montez v. McKinna, 208 F.3d 862 (10th Cir. 2000) (treating § 2241 filings as § 2254 where appropriate)
United States v. Viera, 674 F.3d 1214 (10th Cir. 2012) (appellate courts may decline issues not raised below)