Ogunwomoju v. United States, No. 06-3734 (2d Cir. 2008)

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06-3734-pr, 06-4424-ag Ogunwomoju v. United States 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 1 2 3 4 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2007 Docket Nos. 06-3734-pr, 06-4424-ag Submitted: September 19, 2007 Decided: January 7, 2008) __________________________________________________________ ADENIYI OGUNWOMOJU, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee. __________________________________________________________ ADENIYI OGUNWOMOJU, Petitioner, v. PEOPLE OF THE STATE OF NEW YORK, Respondent. __________________________________________________________ Before: MESKILL,1 MINER, and CABRANES, Circuit Judges. In response to a motion by the Attorney General of the United States to dismiss a petition purportedly seeking review of an order of removal, we construe the petition as a petition for habeas relief or, in the alternative, for a writ of error coram nobis. We affirm the judgment of the United States District Court for the Southern District of New York (Michael B. Mukasey, Chief Judge) dismissing the petition. In doing so, we hold, 1 The Honorable Thomas J. Meskill, who was a member of this panel and voted with the majority, passed away following submission of this case. The appeal is being decided by the remaining two members of the panel, who are in agreement. See 2d Cir. Interim R. 0.14(b). 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 inter alia, that a petitioner in immigration custody or under an order of removal as a consequence of his criminal conviction is not in custody within the meaning of 28 U.S.C. § 2254. 21 Court, is whether a petitioner in immigration detention or under 22 an order of removal as a consequence of a state conviction is in 23 custody within the meaning of the statute providing for a writ 24 of habeas corpus to challenge such a conviction. 25 sister circuits that have considered the issue in holding that 26 immigration detention is not custody for the purposes of 27 establishing jurisdiction to consider habeas petitions 28 challenging a state court conviction pursuant to 28 U.S.C. § 29 2254. 30 Ogunwomoju Adeniyi, pro se, 122-02 Mantauk Street, Springfield Gardens, NY 11413. 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, New York. MINER, Circuit Judge: The question presented, one of first impression for this Adeniyi We join our Ogunwomoju, ( petitioner or Ogunwomoju ) a 31 citizen of Nigeria, filed the petition which forms the basis of 32 the two captioned cases in March of 2006 while he was in 33 immigration detention. 34 a habeas petition pursuant to 28 U.S.C. § 2254 by the United 35 States District Court for the Southern District of New York, 36 where the petition was filed. The petition was correctly designated as Pursuant to 28 U.S.C. § 2241(d), a 2 1 petition for a writ of habeas corpus challenging a conviction in 2 state court may be filed in the district court for the district 3 within which the State Court was held which convicted and 4 sentenced him. 5 conviction in the Criminal Court of the City of New York 6 ( Criminal Court ) of criminal possession of a controlled 7 substance, it was properly filed in the District Court for the 8 Southern District of New York ( District Court ). 9 this petition and Ogunwomoju s subsequent motion2 as a habeas Because Ogunwomoju s petition challenges his We construe 1 2 3 4 5 6 7 8 9 10 11 12 13 2 This petition, dated March 17, 2006, was received by the Pro Se Office of the District Court on March 21, 2006, while Ogunwomoju was in immigration detention in the York County Prison, York, Pennsylvania, a county prison which also serves as an immigration detention facility. See Ogunwomoju v. New York, 06-cv 4599 (S.D.N.Y. June 15, 2006). In May 2006, Ogunwomoju sent a letter to the District Court noting that his address had changed to a location in Springfield Gardens, New York, suggesting that he was no longer in detention. Although the petition was not entered on the official docket until June 15, 2006 the date of Chief Judge Mukasey s order dismissing Ogunwomoju s petition and entering judgment for respondents for the purposes of establishing petitioner s custodial status at the time of filing, we find that the petition was filed when it was received by the District Court on March 21, 2006. 14 15 16 17 18 19 20 21 22 23 24 25 26 On June 6, 2006, Ogunwomoju filed a Motion for Emergency Stay of Deportation ( Motion for Emergency Stay or Motion ) in the District Court. Although the Motion sought relief in relation to Ogunwomoju s habeas petition, it gave rise to the opening of a new case on the docket of the District Court under the second caption noted above. The Motion was designated on the docket sheet as Petition in the Nature of Mandamus. In his Motion, Ogunwomoju reiterated in detail the bases for his habeas claims and argued that his removal to Nigeria should be stayed pending his appeal of the denial of his habeas petition. Ogunwomoju asserted that irreparable harm would be inflicted upon his wife and children if he were to be removed. Noting that his children are U.S. citizens, Ogunwomoju stated that his family would suffer extreme hardship in his absence since he is a father figure and a provider for the entire family. 27 28 29 30 31 32 33 34 35 36 37 By an order signed on September 11, 2006, and entered on September 21, 2006, the District Court (Kimba M. Wood, Chief Judge) transferred to the Court of Appeals the Motion, which is designated as an application challenging petitioner s order of removal. Ogunwomoju v. People of the State of New York, No. 06-cv-6972 (S.D.N.Y. Sept. 11, 2006) ( Transfer Order ). Citing the REAL ID Act of 2005, Pub. L. No. 109-13, § 106, 119 Stat. 231 (May 11, 2005), the District Court transferred what it construed to be Ogunwomoju s petition challenging an order of removal to the Court of Appeals. Id. The District Court s Transfer Order directed the Clerk of the District Court to assign a separate docket number for this case, resulting in the addition of a second caption as the title of a separate proceeding. The Transfer Order also 3 1 petition rather than as a petition for review of an order of 2 removal. 3 District Court (Michael B. Mukasey, Chief Judge)3 dismissing that 4 petition confers upon us jurisdiction to review that judgment. 5 28 U.S.C. § 1291. A timely appeal from the June 15, 2006 judgment of the 6 I. 7 Ogunwomoju filed this petition after removal proceedings 8 were held as a direct consequence of his several criminal 9 convictions. From March 11, 2004 through July 20, 2004, the 10 United States Department of Homeland Security ( DHS ) filed 11 multiple charges of removability against Ogunwomoju pursuant to 8 12 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of crimes 1 2 3 4 5 directed that petitioner s removal or deportation be stayed pending further order of the United States Court of Appeals for the Second Circuit. Id. Finally, the Transfer Order directed the Clerk of the District Court to close the matter under [the newly assigned] docket number. Id. In the interest of judicial economy, we consolidate the captioned appeals. 6 7 8 9 10 11 12 13 14 15 16 17 It appears that Ogunwomoju failed to move for in forma pauperis status on appeal, see 28 U.S.C. § 1915(a), or for a certificate of appealability, see 28 U.S.C. § 2253(c), to pursue the appeal. In the interest of justice and in the interest of resolving all issues before us at the same time, we consider the brief on appeal filed by Ogunwomoju as a motion to proceed in forma pauperis and also as a motion for a Certificate of Appealability. Ogunwomoju has not filed a financial affidavit in connection with his appeal, but the District Court first found that he was indigent and thereafter revoked his in forma pauperis status only because it appeared to the District Court that any appeal from the order denying habeas relief would not be taken in good faith. We have no reason to believe that Ogunwomoju s indigency is not continuing, and we grant him in forma pauperis status to pursue this appeal. 18 19 20 21 22 We grant the Certificate of Appealability in order to resolve an important issue presented by the habeas petition whether one who is in immigrtion detention or subject to an order of removal as a consequence of a state court conviction is entitled to seek habeas relief from the state conviction after the sentence has been served. 1 2 3 4 5 6 3 We review a motion by Attorney General Michael B. Mukasey of a judgment entered by Judge Mukasey when he was Chief Judge of the United States District Court for the Southern District of New York. This curiosity is without legal significance since the Attorney General appears before us solely in his official capacity and as the incumbent Attorney General representing the United States in a matter filed by a previous Attorney General. 4 1 of moral turpitude;4 8 U.S.C. § 1227 (a)(2)(A)(iii), for having 2 been convicted of an aggravated felony;5 and 8 U.S.C. § 3 1227(a)(2)(B)(i), for having been convicted of criminal 4 possession of a controlled substance.6 5 Ogunwomoju s removal proceedings were heard in York, 6 Pennsylvania by an Immigration Judge who denied Ogunwomoju s 7 application for asylum, withholding of removal, and protection 8 under the Convention Against Torture and ordered Ogunwomoju s 9 removal to Nigeria. In re Ogunwomoju, No. A 41 542 092 (I.J. 10 York, PA Sept. 8, 2004). 11 Immigration Judge without opinion on February 14, 2005. 12 Ogunwomoju, No. A 41 542 092 (B.I.A. Feb. 14, 2005). 13 3, 2005, in response to Ogunwomoju s motion to reopen and 14 reconsider its order of removal, the BIA remanded the case to the 15 Immigration Judge to allow Ogunwomoju to pursue an application 16 for relief under Section 212(c) of the Immigration and 17 Naturalization Act, 8 U.S.C. § 1182(c). In re Ogunwomoju, No. A 18 41 542 092 (B.I.A. Aug. 3, 2005). 1 2 3 The BIA affirmed the decision of the In re On August Section 212(c), which was 4 Ogunwomoju was convicted of petit larceny in the District Court of Nassau County, New York, on January 24, 1994, and in the Criminal Court of the City of New York, on August 16, 1994. 5 1 2 3 4 5 6 On November 13, 1990, petitioner was convicted in the United States District Court for the Southern District of New York of conspiracy to commit credit card fraud where the loss to the victim exceeded $10,000. He was also convicted on November 5, 1993 in the United States District Court for the Eastern District of New York of mail fraud by filing fraudulent income tax returns. 1 2 3 4 5 6 On March 7, the City of New York controlled substance New York Penal Law. habeas petition. 2000, Ogunwomoju was convicted in the Criminal Court of following a guilty plea of criminal possession of a in the seventh degree pursuant to Section 220.03 of the It is this conviction that is the subject of the instant 5 1 repealed in 1996 pursuant to the Illegal Immigration Reform and 2 Responsibility Act of 1996 ( IIRIRA ), Pub. L. No. 104-208, Div. 3 C. Title III-A, 110 Stat. § 304(b), 3009-546, 3009-597, conferred 4 broad jurisdiction upon the Attorney General to waive deportation 5 under certain conditions for aliens convicted of offenses 6 involving moral turpitude or the illicit traffic in narcotics 7 who had entered guilty pleas prior to its repeal. 8 Cyr, 533 U.S. 289, 294 (2001). 9 I.N.S. v. St. On October 11, 2005, the Immigration Judge on remand 10 determined that Ogunwomoju was ineligible for such relief because 11 his drug conviction in the Criminal Court occurred after the 12 repeal of Section 212(c) and because the New York courts had not 13 yet ruled on Ogunwomoju s post-conviction challenge to that 14 conviction. 15 Oct. 11, 2005). 16 for his 2000 drug conviction in the Criminal Court, he would be 17 eligible for Section 212(c) relief because his other convictions 18 predated the 1996 repeal of Section 212(c) and because the 19 Immigration Judge referred only to the drug conviction as an 20 impediment to Ogunwomoju s eligibility for Section 212(c) relief. 21 Id. 22 In re Ogunwomoju, No. A 41 542 092 (I.J. York, PA Ogunwomoju apparently believes that were it not Reviewing the Immigration Judge s decision following remand, 23 the BIA on December 27, 2005 concluded that it erroneously had 24 granted Ogunwomoju s motion to reopen, vacated its decision of 25 August 3, 2005, and denied nunc pro tunc the motion to reopen. 26 In re Ogunwomoju, No. A 41 542 092 (B.I.A. Dec. 27, 2005). 6 The 1 BIA denied petitioner s subsequent motion to reopen on February 2 17, 2006. 3 2006). 4 decision in the United States Court of Appeals for the Third 5 Circuit, which on December 7, 2006 dismissed as time-barred 6 Ogunwomoju s petition to consider the original denial of asylum, 7 withholding of removal, and CAT relief and denied his petition to 8 review the BIA s denial of his motion to reopen. 9 v. Att y Gen. of the U.S., 207 F. App x 245, 248 (3d Cir. 2006).7 In re Ogunwomoju, No. A 41 542 092 (B.I.A. Feb. 17, Ogunwomoju sought review of the December 27, 2005 BIA See Ogunwomoju 10 11 As a result of the judgment of the Court of Appeals for the 12 Third Circuit, Ogunwomoju s immigration claims have been 13 thoroughly litigated and they have been conclusively decided 14 against him. 15 II. 16 While in immigration detention seeking relief from the 17 immigration decisions through the BIA and Court of Appeals for 18 the Third Circuit, Ogunwomoju also sought, without success, post- 19 conviction relief from his March 7, 2000 drug conviction in the 20 Criminal Court. 21 state courts, he filed a habeas petition in the District Court in 22 March 2006, challenging the conviction entered in the Criminal 23 Court. 24 1 2 3 After exhausting his options in the New York In challenging his conviction for criminal possession of a 7 Ogunwomoju did not appeal the BIA s February 17, 2006 denial of his motion to reopen. See Ogunwomoju v. Att y Gen. of the U.S., 207 F. App x 245, 247 n.1 (3d Cir. 2006) 7 1 controlled substance in the seventh degree, which entailed a 2 sentence of time served and a six-month suspension of his 3 driver s license, Ogunwomoju advanced the following arguments in 4 his habeas petition: (1) that his plea of guilty was unlawfully 5 induced or not made voluntarily with understanding of the nature 6 of the charge and the consequences of the plea ; (2) that trial 7 counsel was ineffective for waiv[ing] a formal plea allocution 8 and for failing to advise him of the effect his plea would have 9 on his immigration status; and (3) that the evidence seized from 10 him was taken in violation of the Fourth Amendment, since at the 11 time of his arrest he was merely sitting in a parked automobile 12 and was not engaging in any suspicious activity. 13 On June 15, 2006, Chief Judge Mukasey, inter alia, dismissed 14 the habeas petition, finding no basis for the relief sought under 15 28 U.S.C. § 2254. 16 Ogunwomoju was in immigration custody and not in custody pursuant 17 to the challenged criminal conviction. 18 conviction had been fully served by the time Ogunwomoju filed his 19 habeas petition. 20 jurisdiction to consider his habeas petition. Ogunwomoju v. New 21 York, 06-cv-4599, *2 (S.D.N.Y. June 15, 2006). 22 considered and rejected coram nobis relief as an alternative 23 remedy. Id. at *2-3. 24 substantial showing of the denial of a constitutional right, the 25 District Court declined to issue a certificate of appealability 26 in accordance with 28 U.S.C. § 2253. Id. at *4. Specifically, Chief Judge Mukasey found that The sentence for the drug The Court therefore determined that it lacked The Court also Finding that Ogunwomoju had not made a 8 Finally, the 1 District Court certified, pursuant to 28 U.S.C. § 1915(a)(3), 2 that any appeal from the court s order would not be taken in good 3 faith and, accordingly, revoked Ogunwomoju s in forma pauperis 4 status. A Notice of Appeal was timely filed on July 6, 2006. 5 6 III. In order for a District Court to entertain a petition for 7 habeas relief, the application for relief must be made in behalf 8 of a person in custody pursuant to the judgment of a State court 9 only on the ground that he is in custody in violation of the 10 Constitution or laws or treaties of the United States. 28 11 U.S.C. § 2254(a) (emphasis supplied). 12 custody in order to invoke habeas jurisdiction of the federal 13 courts. A petitioner must be in Custody 14 15 16 17 18 19 20 21 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 (1968) (internal citations 22 omitted). 23 state sentence he sought to attack when he filed his petition for 24 habeas relief. 25 from custody while his appeal was pending, and the state then 26 claimed that his discharge rendered further proceedings moot. 27 Id. at 236. 28 inter alia, that collateral consequences of conviction, such as 29 disqualification from engaging in certain businesses, from 30 serving as a labor union officer, and from voting and serving as In Carafas, the petitioner was incarcerated under the Id. at 235 36. He was unconditionally discharged The Supreme Court rejected that argument, noting, 9 1 a juror, survive the expiration of a sentence. 2 It is on the basis of that decision that petitioner argues in the 3 instant case that his immigration detention, resulting from an 4 order of removal issued in consequence of his drug conviction, 5 qualifies him as in custody pursuant to the judgment of the 6 state court for the purpose of establishing our jurisdiction to 7 consider his habeas petition under 28 U.S.C. § 2254. 8 9 Id. at 237 38. However, in a later explication of its holding in Carafas, the Supreme Court made it clear that it had 10 11 12 13 14 15 16 17 18 19 20 21 Maleng v. Cook, 490 U.S. 488, 492 (1989) (emphasis in original). 22 In Maleng, the Court determined that a state detainer placed with 23 the federal authorities to assure that a petitioner would begin 24 to serve his state sentence at the conclusion of his federal 25 sentence satisfied the requirement that a petitioner be in 26 custody for the purpose of a habeas attack on the state 27 conviction. 28 29 rested that holding not on the collateral consequences of the conviction, but on the fact that the petitioner had been in physical custody under the challenged conviction at the time the petition was filed. The negative implication of this holding is, of course, that once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual in custody for the purposes of a habeas attack upon it. Id. at 493. Although Ogunwomoju was in immigration detention at the time he filed the habeas petition in the District Court to challenge 10 1 his New York conviction,8 he was not in custody pursuant to a 2 judgment of a state court. 3 of time served incarceration and a six-month license 4 suspension, had been fully served in the year 2000, nearly six 5 years before he filed his habeas petition. 6 habeas petition in March of 2006 from the place of his 7 immigration detention, where he was in custody pending further 8 action in his removal proceeding. 9 His state court sentence, consisting Ogunwomoju filed his We held before the enactment of the REAL ID Act, 119 Stat. 10 231, that where a petitioner who is currently serving a state 11 sentence seeks to challenge a final order of removal, that order 12 is sufficient, by itself, to establish the requisite custody 13 for habeas purposes under 28 U.S.C. §2241.9 14 386 F.3d 172, 178 (2d Cir. 2004). 1 2 3 4 5 6 Duamutef v. I.N.S., However, we have not 8 Ogunwomoju is not in immigration detention at this time, although he was at the time he filed his habeas petition. However, he is still subject to the order of removal and is therefore still in immigration custody. See Simmonds v. I.N.S., 326 F.3d 351, 355 (2d Cir. 2003) ( [W]e have held that an alien who has been released on bail from INS detention but is subject to a final order of removal is in INS custody. ). 9 1 2 3 4 5 Prior to the May 13, 2005 enactment of the REAL ID Act, 119 Stat. 231, persons held in immigration detention or subject to an order of removal could challenge their detention through a petition for a writ of habeas corpus in district court pursuant to 28 U.S.C. §2241. See, e.g.,Richards v. Ashcroft, 400 F.3d 125, 127 (2d Cir. 2005). 6 7 8 9 10 11 12 13 14 15 16 17 Since passage of the REAL ID Act, district courts no longer have jurisdiction to consider habeas petitions challenging immigration petitions, see 8 U.S.C. § 1252(a)(5), and all habeas petitions challenging immigration detention that were pending before passage of the REAL ID Act are construed as petitions for review of orders of removal, see Gittens v. Menifee, 428 F.3d 382, 383, 385 (2d Cir. 2005). New petitions for review must be filed with the appropriate circuit of the United States Court of Appeals within 30 days of the BIA s entry of the final order of removal. 8 U.S.C. § 1252(a)(5), (b)(1). Thus Ogunwomoju s petition for review was properly considered by the Third Circuit, and we are without jurisdiction to consider any subsequent petition for review challenging the order of removal issued by the Immigration Judge in Pennsylvania. 11 1 previously considered the converse whether a petitioner in 2 immigration detention or under an order of removal as the result 3 of a criminal conviction is in custody for the purpose of a § 4 2254 challenge to that criminal conviction. 5 join our sister circuits that have determined that one held in 6 immigration detention is not in custody for the purpose of 7 challenging a state conviction under § 2254. 8 Kovensky, 416 F.3d 952, 956 58 (9th Cir. 2005); 9 Ashcroft, 358 F.3d 1251, 1254 (10th Cir. 2004); cf. United States We do so now, and See Resendiz v. Broomes v. 10 v. Esogbue, 357 F.3d 532, 534 (5th Cir. 2004)(holding that 11 immigration detention is not custody for the purposes of a 12 habeas petition challenging a federal conviction under 28 U.S.C. 13 § 2255); Kandiel v. United States, 964 F.2d 794, 796 (8th Cir. 14 1992) (same). 15 Removal proceedings are at best a collateral consequence of 16 conviction, and we must bear in mind that once the sentence 17 imposed for a conviction has completely expired, the collateral 18 consequences of that conviction are not themselves sufficient to 19 render an individual in custody for the purpose of a habeas 20 attack upon it. 21 situation in which Ogunwomoju now finds himself. 22 in custody language of § 2254(a) is jurisdictional and requires 23 that habeas petitioners be in custody under a state conviction or 24 sentence when they file for habeas relief, the judgment of the 25 District Court dismissing Ogunwomoju s habeas petition for want 26 of jurisdiction must be affirmed. Maleng, 490 U.S. at 492. 12 That is precisely the And because the 1 IV. 2 The District Court construed Ogunwomoju s habeas petition in 3 the alternative as a petition for a writ of error coram nobis and 4 denied alternative relief. 5 jurisdiction to grant such writs with respect to state court 6 judgments. See Finkelstein v. Spitzer, 455 F.3d 131, 133 34 (2d 7 Cir. 2006). The writ traditionally has been utilized by courts 8 to correct errors within their own jurisdiction. 9 Writs Act, 28 U.S.C. § 1651(a), empowers the federal courts to We have held that federal courts lack Id. The All 10 issue writs of error coram nobis but only such as are necessary 11 or appropriate in aid of their jurisdictions and agreeable to the 12 uses and principles of law. 13 the Sister Circuits that have addressed this question have ruled 14 that the district courts lack jurisdiction to issue writs of 15 error coram nobis to set aside judgments of State Courts. 16 Finkelstein, 455 F.3d at 134. 17 properly denied coram nobis as alternative relief. 18 We have noted with approval that Accordingly, the District Court Conclusion We affirm the June 15, 2006 judgment of the United States District Court for the Southern District of New York dismissing for want of jurisdiction Ogunwomoju s petition for the writ of habeas corpus or, in the alternative, for the writ of coram nobis. To the extent that Ogunwomoju s petitions can be construed as a petition for review of the BIA s order of removal (a matter fully litigated to conclusion in the Third Circuit), we grant the Attorney General s motion to dismiss Ogunwomoju s petition for 13 want of jurisdiction, and we vacate the September 11, 2006 Order of the District Court entering a stay of removal. 14

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