Miquel Angel Amaya-Esparsa v. Linda Sanders, No. 2:2008cv07519 - Document 6 (C.D. Cal. 2008)

Court Description: MEMORANDUM AND OPINION by Judge Virginia A. Phillips. IT IS ORDERED that Judgment shall be entered summarily dismissing the habeas corpus petition and action for lack of subject matter jurisdiction. See order for further details. (jy)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 MIGUEL ANGEL AMAYA-ESPARZA, ) Case No. CV 08-7519-VAP(RC) ) Petitioner, ) ) vs. ) OPINION AND ORDER ON A ) PETITION FOR HABEAS CORPUS LINDA SANDERS, WARDEN LOMPOC ) FCC, ) ) Respondent. ) ) 17 18 On November 13, 2008, petitioner Miguel Angel Amaya-Esparza, a 19 federal inmate proceeding pro se, filed a petition for writ of habeas 20 corpus under 28 U.S.C. § 2241, seeking cancellation of removal or 21 deportation from the United States on the grounds petitioner s removal 22 order is in violation of due process, full notice and opportunity to 23 respond, denial of competent counsel, [and] confrontation with 24 witnesses against me. Petition at 2-4. 25 26 DISCUSSION 27 On May 11, 2005, President Bush signed into law the REAL ID Act 28 of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005) ( the Act ), which 1 significantly amended portions of the Immigration and Naturalization 2 Act. 3 adopted by 466 F.3d 1121, 1124 (9th Cir. 2006) (en banc). 4 cally, the Act provides: Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir. 2005), Specifi- 5 6 Notwithstanding any other provision of law (statutory or 7 nonstatutory), including section 2241 of Title 28, or any 8 other habeas corpus provision, and sections 1361 and 1651 of 9 such title, a petition for review filed with an appropriate 10 court of appeals in accordance with this section shall be 11 the sole and exclusive means for judicial review of an order 12 of removal entered or issued under any provision of this 13 chapter, except as provided in subsection (e) of this 14 section. 15 that limits or eliminates judicial review or jurisdiction to 16 review, the terms "judicial review" and "jurisdiction to 17 review" include habeas corpus review pursuant to section 18 2241 of Title 28, or any other habeas corpus provision, 19 sections 1361 and 1651 of such title, and review pursuant to 20 any other provision of law (statutory or nonstatutory). For purposes of this chapter, in every provision 21 22 8 U.S.C. § 1252(a)(5)(emphasis added); see also 8 U.S.C. 23 § 1252(a)(2)(D) ( Nothing in subparagraph (B) or (C), or in any other 24 provision of this chapter (other than this section) which limits or 25 eliminates judicial review, shall be construed as precluding review of 26 constitutional claims or questions of law raised upon a petition for 27 review filed with an appropriate court of appeals in accordance with 28 this section. ). Moreover, the Act applies to cases in which the 2 1 final administrative order of removal, deportation, or exclusion was 2 issued before, on, or after the date of the enactment of this Act. 3 Pub. L. No. 109-13, 119 Stat. 231, 311 (2005). 4 aliens challenging a final deportation, exclusion, or removal order to 5 file a petition for review in the appropriate federal court of 6 appeals. 7 2006), cert. denied, 127 S. Ct. 1839 (2007); Alvarez-Barajas v. 8 Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005). Thus, the Act requires Almaghzar v. Gonzales, 457 F.3d 915, 918 n.1 (9th Cir. 9 10 Here, petitioner, who is in custody for violating 8 U.S.C. § 11 1326(a) and (b)(1) (deported alien found in United States),1 claims 12 his initial deportation from the United States following a criminal 13 conviction was unconstitutional, and he seeks relief from that removal 14 order. 15 matter jurisdiction over petitioner s habeas corpus petition, and the 16 pending petition and action should be summarily dismissed for lack of 17 subject matter jurisdiction, pursuant to Local Rule 72-3.2.2 See Petition at 2-4. Under the Act, this Court lacks subject 18 ORDER 19 20 21 IT IS ORDERED that Judgment shall be entered summarily dismissing the habeas corpus petition and action for lack of subject matter 22 23 24 25 26 27 28 1 See United States v. Amaya-Esparza, United States District Court for the Eastern District of California case no. CR 07-0081-MCE. 2 Local Rule 72-3.2 provides that if it plainly appears from the face of the [habeas] petition and any exhibits annexed to it that the petitioner is not entitled to relief, the Magistrate Judge may prepare a proposed order for summary dismissal and submit it and a proposed judgment to the District Judge. Local Rule 72-3.2. 3 1 jurisdiction. 2 3 4 The Clerk of Court is ordered to serve this Opinion and Order and Judgment on petitioner. 5 6 DATE: December 1, 2008 VIRGINIA A. PHILLIPS UNITED STATES DISTRICT JUDGE 7 8 PRESENTED BY: 9 DATE: November 25, 2008 10 11 /S/ Rosalyn M. Chapman ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE 12 R&R-MDO\08-7519.mdo 13 11/25/08 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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