-EFB (HC)Asare v. On Habeas Corpus, No. 2:2011cv00478 - Document 9 (E.D. Cal. 2011)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/12/11 ORDERING that 8 Motion to Proceed IFP is GRANTED; RECOMMENDING that because the court lacks jurisdiction to entertain the petition, it is recommended that the petition be dismissed; 7 Amended Petition for Writ of Habeas Corpus referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)
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-EFB (HC)Asare v. On Habeas Corpus Doc. 9 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 RAYMOND ASARE, Petitioner, 11 vs. 12 13 No. CIV S-11-0478 JAM EFB P STANISLAUS COUNTY SUPERIOR COURT, ORDER AND FINDINGS AND RECOMMENDATIONS 14 Respondent. / 15 Petitioner is a detainee of the federal Bureau of Immigrations and Customs Enforcement 16 17 at Florence Correctional Center. He seeks leave to proceed in forma pauperis. Dckt. No. 8. His 18 application makes the showing required by 28 U.S.C. § 1915(a) and therefore his request to 19 proceed is granted. Petitioner has filed the instant a writ of habeas corpus under 28 U.S.C. § 2254 alleging 20 21 various constitutional infirmities in a state court petty theft conviction sustained in 2007 and 22 apparently forming the basis of his current immigration detention. The court finds that it is 23 without jurisdiction to entertain the petition and therefore recommends that it be dismissed. See 24 Rule 4, Rules Governing § 2254 Proceedings. 25 //// 26 //// 1 Dockets.Justia.com 1 A district court must entertain a habeas petition “in behalf of a person in custody 2 pursuant to the judgment of a State court only on the ground that he is in custody in violation of 3 the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A judge 4 entertaining a habeas petition “shall forthwith award the writ or issue an order directing the 5 respondent to show cause why the writ should not be granted, unless it appears from the 6 application that the 7 applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. The petition must be 8 dismissed if on initial review the court finds that “it plainly appears from the petition and any 9 attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules 10 Governing § 2254 Proceedings. An application for federal habeas relief must specify all grounds 11 for relief, state facts supporting each ground and state the relief requested. Rule 2, Rules 12 Governing § 2254 Cases. While under Ninth Circuit precedent, this court must liberally construe 13 the allegations of a prisoner proceeding without counsel, see Roy v. Lampert, 465 F.3d 964, 970 14 (9th Cir. 2006), the court cannot grant relief based on conclusory allegations not supported by 15 any specific facts, Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995); James v. Borg, 24 F.3d 16 20, 26 (9th Cir. 1994). 17 Here, petitioner challenges a state-court conviction of petty theft sustained in 2007, but is 18 no longer in state custody. Dckt. No. 7, Am. Pet. at 1, 4. It appears from the face of the petition 19 that petitioner is instead in the custody of federal immigration officials under an order of 20 deportation. See id. at 1 (noting place of confinement as “ICE Florence Detention Center”) & 4 21 (alleging that trial counsel was ineffective for failing to obtain a conviction on a non-deportable 22 offense and that petitioner’s plea was involuntary because he did not know the conviction could 23 become a basis for his deportation). 24 Federal court jurisdiction to review a petition for writ of habeas corpus brought under 28 25 U.S.C. § 2254 lies only where the petitioner is “in custody pursuant to the judgment of a State 26 court.” The Ninth Circuit has held that, once the sentence imposed for a conviction has 2 1 completely expired and the petitioner is no longer in state custody, the immigration 2 consequences of that conviction – including deportation – are considered “collateral” and do not 3 provide a basis for federal jurisdiction under § 2254. Resendiz v. Kovensky, 416 F.3d 952, 956- 4 57 (9th Cir. 2005). 5 There are two possible exceptions to § 2254’s “in custody” requirement. First, a 6 complete deprivation of counsel under Gideon v. Wainwright, 372 U.S. 335 (1963), in the 7 underlying state proceedings may be challenged in a federal habeas proceeding although the 8 petitioner is no longer serving the state sentence and is instead in federal custody. Resendiz, 416 9 F.3d at 959 (citing Curtis v. United States, 511 U.S. 485, 494-96 (1994)). The Supreme Court 10 has squarely held that claims of ineffective assistance of counsel and that a plea was not knowing 11 and intelligent do not fall within this limited exception. Curtis, 511 U.S. at 496. Because 12 petitioner argues solely ineffective assistance of trial counsel and that his plea was not knowing 13 and intelligent, the petition does not fall within this first exception. 14 A second potential exception may exist “where ‘a state court . . . without justification, 15 refuse[s] to rule on a constitutional claim that has been presented to it’ or when a defendant 16 ‘obtain[s] compelling evidence that he is actually innocent.’” Resendiz, 416 F.3d at 959 (quoting 17 Lackawanna County Dist. Atty. v. Coss, 532 U.S. 394, 405 (2001)). There is no argument of 18 actual innocence in the petition; instead, petitioner wishes that he had been informed and had 19 understood the immigration consequences of his guilty plea. Further, the petition shows that 20 petitioner has not presented his claims at all to the state courts. Dckt. No. 7 at 1-2 (indicating 21 that petitioner did not appeal or file a state habeas petition concerning the conviction). 22 Accordingly, the petition does not fall within the second exception. 23 Further, the court cannot obtain jurisdiction over the petition by construing it as one 24 brought under 28 U.S.C. § 2241, which generally provides an avenue of habeas relief for persons 25 in federal custody. In Contreras v. Schiltgen, the Ninth Circuit held that a federal court lacks 26 jurisdiction to entertain a § 2241 habeas petition brought by an individual in immigration 3 1 detention on the ground that his or her state conviction, which provided the basis for immigration 2 detention, was unconstitutional. 122 F.3d 30 (9th Cir. 1997), aff’d on add’l grounds by 3 Contreras v. Schiltgen, 151 F.3d 906 (9th Cir. 1998); see also Resendiz, 416 F.3d at 960-61. 4 5 6 7 Accordingly, it is hereby ORDERED that petitioner’s motion to proceed in forma pauperis (Docket No. 8) is granted. Because the court lacks jurisdiction to entertain the petition, it is hereby RECOMMENDED that the petition be dismissed. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 10 after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 13 within the specified time may waive the right to appeal the District Court’s order. Turner v. 14 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In 15 his objections petitioner may address whether a certificate of appealability should issue in the 16 event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 17 Section 2254 Cases (the district court must issue or deny a certificate of appealability when it 18 enters a final order adverse to the applicant). 19 Dated: April 12, 2011. 20 21 22 23 24 25 26 4