HUGO RANGEL RESENDIZ, Petitioner-Appellant, v. LEONARD KOVENSKY, Acting Director, Immigration and Naturalization Service, Respondent-Appellee.
No. 03-55136
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
June 27, 2005
D.C. No. CV-02-00104-PA
7609
Before: Mary M. Schroeder, Chief Judge, Harry Pregerson, and Stephen S. Trott, Circuit Judges.
Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding
Argued and Submitted April 8, 2005—Pasadena, California
Filed June 27, 2005
Opinion by Judge Trott
COUNSEL
Frank M. Travieso, Assistant United States Attorney, Los Angeles, California, for the respondent-appellee.
OPINION
TROTT, Circuit Judge:
OVERVIEW
Hugo Rangel Resendiz appeals the district court‘s dismissal of two petitions for habeas corpus — one under
We conclude that (1) Resendiz was not “in custody pursuant to the judgment of a State court” when he filed his
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 (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.
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,
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
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. 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
Sympathizing with Resendiz‘s unfortunate procedural situation, the district court nonetheless concluded that it lacked jurisdiction over the
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
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
1. Custody Requirement of § 2254
[1] Pursuant to
[2] 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 (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 id. at 492.
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
[3] Contrary to Resendiz‘s assertion, immigration consequences of a state conviction continue to be collateral. As originally stated in Fruchtman, these consequences arise from the action of an independent agency — indeed, in the case of a state conviction, an independent sovereign — and are consequences over which the state trial judge has no control whatsoever. See United States v. Amador-Leal, 276 F.3d 511, 515-16 (9th Cir. 2002) (holding that Fruchtman remains good law post-AEDPA and post-IIRIRA).
We explained in Amador-Leal: “whether an alien will be removed is still [after AEDPA and IIRIRA] up to the INS. There is a process to go through, and it is wholly independent of the court imposing the sentence . . . . Removal is not part of the sentence.” Id. at 516 (emphasis added). Extending that holding, we have similarly concluded that, because immigration consequences remain collateral, the failure of counsel to advise his client of the potential immigration consequences of a conviction does not violate the Sixth Amendment right to effective assistance of counsel. United States v. Fry, 322 F.3d 1198, 1200-01 (9th Cir. 2003).
Resendiz claims that Amador-Leal and Fry are inapposite because the conclusion that immigration consequences remain collateral post-AEDPA and post-IIRIRA was not made in the context of an “in custody” determination. This is a distinction without a difference, and we see no reason why the rationale of Amador-Leal and Fry does not apply with equal force here. Nothing about an “in custody” determination would change the rationale of those cases, namely that the immigration consequences are the result of an independent agency, not part of the state sentence.
The Tenth Circuit‘s decision in a factually similar case, Broomes v. Ashcroft, 358 F.3d 1251 (10th Cir. 2004), bolsters our conclusion. Like Resendiz, the petitioner in Broomes, Asfaw Abtew, claimed that his trial counsel in a state court proceeding failed to inform him of the immigration consequences of a guilty plea. Id. at 1253. Relying on a number of cases, including Maleng and our prior decision in Contreras, the Tenth Circuit held that Abtew was not “in custody pursuant to the judgment of a State court” because, like Resendiz, Abtew‘s state sentence had fully expired. Id. at 1255-56. Furthermore, with respect to a second petitioner in that case, the Tenth Circuit concluded, as we did in Amador-Leal and Fry, that the AEDPA and IIRIRA “did not alter the collateral nature of deportation to a criminal proceeding.” Id. at 1256.
Finally, Resendiz contends that Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874 (2d Cir. 1996), supports his position. Poodry is inapplicable. In Poodry, the Second Circuit applied ordinary habeas corpus principles and concluded that an Indian tribe member who had been sentenced by the tribe to permanent tribal banishment was “in custody.” Id. at 893-95. The court held that the threat of banishment by the tribe was a severe restraint on liberty, and thus, federal habeas corpus review was appropriate. Id.
The holding in Poodry is not at all remarkable, nor does it help Resendiz. The Poodry court examined the act of a single sovereign (the tribe), and determined that the severe restraint imposed by the threat of banishment was enough to put the petitioner in custody pursuant to that sovereign‘s judgment. The holding mirrors the
[4] The material difference between cases such as Poodry and St. Cyr and Resendiz‘s case is that, severe consequences notwithstanding, two independent agencies (indeed, sovereigns) are operating here. The state‘s action is entirely independent of the INS‘s action initiating deportation proceedings, and the state has nothing to do with deportation. Thus, while Resendiz is indeed threatened with banishment, it is not a threat imposed by the state court, and there is nothing unlawful about the INS detention.
[5] Consequently, we must reject Resendiz‘s argument that the immigration consequences of his state conviction render him “in custody pursuant to the judgment of a State court” for purposes of
2. Narcotics Offender Registration
Resendiz contends that the requirement that he register for five years as a narcotics offender renders him “in custody” pursuant to the state court judgment for purposes of
any person who is convicted in the State of California of [one of several enumerated narcotics offenses] . . . shall within 30 days of his or her coming into any county or city, or city and county in which he or she resides or is temporarily domiciled for that length of time, register with the chief of police of the city in which he or she resides or the sheriff of the county if he or she resides in an unincorporated area.
The “registration” requires that the person give
a statement in writing signed by such person, giving such information as may be required by the Department of Justice, and . . . the fingerprints and photograph of such person. . . . If any person required to register hereunder changes his residence address he shall inform, in writing within 10 days, the law enforcement agency with whom he last registered of his new address.
Initially, to the extent that he relies on the punitive nature of the statute as a reason to satisfy the custody requirement, Resendiz‘s claim that this statute is punitive in nature is wrong. The California case he cites for that proposition, People v. Villela, 30 Cal. App. 4th 54, 60 (1994), applied the analysis outlined by In re Reed, 33 Cal. 3d 914 (1983), and did indeed conclude that the narcotics registration statute was punitive in nature. However, the California Supreme Court disapproved of the Reed analysis in People v. Castellanos, 21 Cal. 4th 785, 797-99 (1999), shattering Villela‘s conclusion that the narcotics registration law is punitive. In re Luisa Z., 78 Cal. App. 4th 978 (2000), on the other hand, remains good law, and concluded that the narcotics registration statute at
[6] Resendiz‘s argument that the registration requirement renders him in custody because it is a restriction not shared generally by the public also fails. We have held previously that several states’ sexual offender registration laws do not render a habeas petitioner “in custody” because they are a collateral consequence of conviction that do not impose a severe restraint on an individual‘s liberty. See Henry v. Lungren, 164 F.3d 1240, 1242 (9th Cir. 1999) (holding that California sexual offender registration laws do not render registrant “in custody“); McNab v. Kok, 170 F.3d 1246 (9th Cir. 1999) (holding the same with respect to Oregon sexual offender laws); Williamson v. Gregoire, 151 F.3d 1180, 1182-84 (9th Cir. 1998) (holding the same with respect to Washington sexual offender laws).
There is no material difference between such laws and the narcotics offender law at issue here to command a different result. Indeed, the narcotics offender laws create far less restraint than do the sexual offender registration laws. While the sexual offenders in the cases cited above are required to report within twenty-four hours of moving, a narcotics offender under
[7] Given that these sexual offender registration laws do not render an individual “in custody,” despite their stringent requirements, we see no reason to treat the far less restrictive narcotics offender registration laws any differently.
3. Exceptions to In Custody Requirement
[8] The Supreme Court has identified two possible exceptions to the “in custody” requirement, neither of which apply here. The first is a Gideon2 violation, or a complete failure of counsel. Custis v. United States, 511 U.S. 485, 494-96 (1994). That exception is concededly not present here. The second, which Resendiz asserts, is a possible “rare” exception, not yet defined, where “no channel of review was actually available to a defendant with respect to a prior conviction.” Daniels v. United States, 532 U.S. 374, 383 (2001); see also Johnson v. United States, 544 U.S. 295, 304 n.4 (2005) (stating that the Court has recognized “only one exception,” the Gideon exception, to the general prohibition on collateral attacks and declining to explore the possible “rare” second exception).
[9] To the extent that this rare exception may exist, the Court has suggested that it might be present where “a state court . . . without justification, refuse[s] to rule on a constitutional claim that has been presented to it” or where a defendant “obtain[s] compelling evidence that he is actually innocent.” Lackawanna County Dist. Atty. v. Coss, 532 U.S. 394, 405 (2001). There has been no suggestion that an exception exists where, as here, channels for review not only existed, but also were pursued. In other words, although Resendiz has no federal channel of review, it is quite clear that he has had and availed himself of
4. Writ of Coram Nobis
Resendiz argues that the district court should not have construed his petition as one under
5. Collateral Attack of State Court Judgment
Finally, Resendiz contends, for the first time, that Contreras and Contreras II are not controlling post-AEDPA. He urges us to revisit the holding of Contreras and conclude that in a
The facts of Contreras are indistinguishable from the instant case: the petitioner in Contreras pled no contest to a crime that would result in deportation. He later claimed that his counsel provided ineffective assistance, rendering his plea involuntary. However, like Resendiz, Contreras had completed his state sentence by the time his state remedies were exhausted. Contreras, 122 F.3d at 31-32.
[10] In Contreras, and in this case as well, “[t]he fact of [petitioner‘s state] conviction is sufficient basis for the INS to detain him.” Id. at 32. Consequently, in Contreras, “there [was] nothing unlawful about the INS’ holding Contreras in custody.” Id. Accordingly, we held that, because the INS had neither the authority nor the competence to inquire into the facts of the conviction, no collateral attack was permissible. Id.
[11] Nothing in the AEDPA or IIRIRA serves to undermine the holding of Contreras. The long-standing prohibition on collateral attack is premised on a need for finality. See, e.g., Lackawanna, 532 U.S. at 403 (explaining the reasons why collateral attack is prohibited: preserving the integrity of the judgment and ease of administration). The Supreme Court recently reaffirmed this principle in Johnson, 544 U.S. at 304. Indeed, the Court concluded that the AEDPA‘s principal purposes — a need for finality — would be thwarted “by maximizing the time that judgments are open to question.” Id. at 308.
[12] Given this principle inherent in the AEDPA, courts continue to cite Contreras with approval, apply the cases upon which Contreras relied, and reach the same conclusion in the post-AEDPA context. See Broomes, 358 F.3d at 1255 (concluding, in a post-AEDPA petition, that petitioner could not collaterally attack his state court conviction in a
CONCLUSION
For the reasons discussed, we conclude that (1) Resendiz was not “in custody pursuant to the judgment of a State court” for purposes of
AFFIRMED.
STEPHEN S. TROTT
UNITED STATES CIRCUIT JUDGE