Mohamud Mohamed Hassan v. Eric H. Holder, Jr.

Court of Appeals for the Eighth Circuit

Jan 4, 2012

11-2021

Versions:

Katherine M. Menendez, Assistant, Federal Public Defender‘s Office, Minneapolis, MN, for Appellant.

Raymond Maurice Waddell, Minnesota Department of Corrections, Stillwater, MN, pro se.

Mark Nathan Lystig, St. Paul, MN, for Appellee.

Before WOLLMAN, MURPHY, and BENTON, Circuit Judges.

PER CURIAM.

Raymond Maurice Waddell was convicted of murder in state court. In 2003, his sentence and conviction were affirmed by the Minnesota Supreme Court. State v. Waddell, 655 N.W.2d 803 (Minn. 2003). On February 20, 2009, he sought habeas relief in district court.¹ He requested equitable tolling alleging his mental illness prevented him from filing within the one-year statute of limitations in 28 U.S.C. § 2244(d). In affidavits submitted to the district court, Waddell stated he had a mental illness “between the years 2000-2007” or “2002-2007.”

The district court dismissed his habeas corpus petition as untimely. Waddell v. Symmes, Civ. No. 09-417, 2011 WL 573585 (D. Minn. Feb. 14, 2011) (adopting the Report and Recommendation and granting a certificate of appealability under 28 U.S.C. § 2253(c)(1)). In a thorough and well-reasoned Report and Recommendation, the magistrate judge found that Waddell was capable of filing his petition “sometime in 2007” but waited until 2009—based on his own admission, the statements of his therapist, and the other evidence in the record. Civ. No. 09-417, 2010 WL 5804974 (D. Minn. Nov. 30, 2010) (Report and Recommendation). See Riddle v. Kemna, 523 F.3d 850, 857 (8th Cir. 2008) (en banc) (equitable tolling of statute of limitations for filing of a habeas petition is an extraordinary remedy and is proper only when the petitioner has been pursuing his rights diligently and external circumstances make it impossible for the petitioner to file on time).

Because the judgment of the district court is based on findings of fact that are not clearly erroneous and no error of law appears, the judgment is affirmed. See 8th Cir. R. 47B.

Mohamud Mohamed Hassan, Rochester, MN, pro se.

Scott Baniecke, U.S. Immigration & Naturalization Service, Bloomington, MN, Senior Litigation Counsel, U.S. Department of Justice, Washington, DC, Karen Yolanda Drummond, Richard M. Evans, Kiley L. Kane, U.S. Department of Justice, Washington, DC, for Respondent.

Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.

PER CURIAM.

Mohamud Mohamed Hassan petitions for review of an order of the Board of Immigration Appeals (BIA), affirming an immigration judge‘s denial of withholding of removal.¹ Upon review, we conclude that the BIA did not abuse its discretion in determining that Hassan was ineligible for withholding of removal because he had been convicted of a particularly serious crime and was a danger to the community. See 8 U.S.C. § 1231(b)(3)(B)(ii) (alien is not eligible for withholding of removal if Attorney General decides that alien, having been convicted by final judgment of particularly serious crime, is danger to community); Doe v. Holder, 651 F.3d 824, 829 (8th Cir. 2011) (alien convicted of particularly serious crime is ineligible for withholding of removal); see also Delgado v. Holder, 648 F.3d 1095, 1100 (9th Cir. 2011) (en banc) (concluding that 8 U.S.C. § 1252(a)(2)(B)(ii) did not bar review of BIA‘s determination that alien had been convicted of particularly serious crime (citing Kucana v. Holder, — U.S. —, 130 S.Ct. 827, 836-37, 175 L.Ed.2d 694 (2010))); Denis v. Att‘y Gen. of U.S., 633 F.3d 201, 217 (3d Cir. 2011) (BIA properly exercised its discretion in applying legal standard to facts “in finding [alien‘s] crime particularly serious“); Tian v. Holder, 576 F.3d 890, 896-97 (8th Cir. 2009) (setting forth factors to be considered in determining whether crime was particularly serious).

We also conclude that it was proper for the BIA—in recognition of the finality of Hassan‘s prior conviction—to reject his request for a remand under Padilla v. Kentucky, — U.S. —, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Cf. Paredes v. Att‘y Gen. of U.S., 528 F.3d 196, 198-99 (3d Cir. 2008) (unless and until conviction is overturned, pendency of collateral attack does not vitiate finality for immigration purposes); Gouveia v. INS, 980 F.2d 814, 817 (1st Cir. 1992) (“Criminal convictions cannot be collaterally attacked during immigration proceedings.“).

Accordingly, we deny the petition. See 8th Cir. R. 47B.

Notes

The Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota, adopting the Report and Recommendation of the Honorable Arthur J. Boylan, Chief Magistrate Judge of the District of Minnesota. Hassan also requested asylum and deferral of removal under the Convention Against Torture, but he no longer pursues those requests.