Dias, Jr. v. Cruz et al

Filing 31

Judge Mark G. Mastroianni: ORDER DENYING CERTIFICATE OF APPEALABILITY entered. re 28 USCA Order. Because the Court denied Petitioner's claim on two independent procedural grounds that is finds reasonable jurists could not debate, the certificate of appealability is DENIED; cc/Petitioner. (Finn, Mary) Modified on 6/7/2016 to add copy to Petitioner. (Finn, Mary).

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ANTONIO O. DIAS, JR.,
Petitioner,
v.
TIMOTHY J. CRUZ and MAURA
HEALEY,
Respondents.

*
*
*
*
*
*
*
*
*
*
*

Civil No. 15-30165-MGM

ORDER DENYING CERTIFICATE OF APPEALABILITY
June 7, 2016
MASTROIANNI, U.S.D.J.
On March 31, 2016, the court dismissed the Petition for a Writ of Habeas Corpus of
Antonio Dias, Jr. (“Petitioner”). (Dkt. No. 22.) On April 5, 2016, Petitioner filed a notice of appeal
to the First Circuit Court of Appeals. (Dkt. No. 24.) On May 27, 2016, the First Circuit issued an
order directing this court to issue or deny a certificate of appealability pursuant to 28 U.S.C. § 2253.
(Dkt. No. 28.)
A certificate of appealability may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing when
a petition is denied on procedural grounds, a petitioner must show that “jurists of reason would find
it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). This is “a low barrier,” Jenkins v. Bergeron, 2015 WL 461911, at *1 (D. Mass.
Feb. 4, 2015), but the petitioner must demonstrate “something more than the absence of frivolity or
the existence of mere good faith.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003).

Petitioner pleaded guilty to six criminal charges on November 8, 1996 and served his
sentence. After being released from custody, he was deported to Portugal on February 16, 1999, and
he has resided in Portugal since that time. The court dismissed the Petition because it found
Petitioner does not meet the jurisdictional “in custody” requirement to be eligible for habeas relief.
See 28 U.S.C. § 2254(a); Maleng v. Cook, 490 U.S. 488, 490 (1989). Every decision of which the court
is aware has held that an individual who files a petition for habeas relief after being deported is not
“in custody” for habeas purposes unless he can demonstrate extreme circumstances or show that he
is subject to restraints on his liberty not shared by ordinary non-citizens living outside the United
States. See Merlan v. Holder, 667 F.3d 538, 539 (5th Cir. 2011); Kumarasamy v. Attorney General, 453 F.3d
169, 173 (3d Cir. 2006); Samirah v. O’Connell, 335 F.3d 545, 549-50 (7th Cir. 2003); Patel v. U.S.
Attorney General, 334 F.3d 1259, 1263 (11th Cir. 2003); Miranda v. Reno, 238 F.3d 1156, 1158-59 (9th
Cir. 2001).
Because Petitioner was deported for crimes to which he pleaded guilty and his repeated
collateral attacks on his conviction in state court have failed, no extreme circumstances exist here.
There is no indication that Petitioner is subject to any restraints on his liberty not shared by ordinary
non-citizens outside the United States. At best, Petitioner’s arguments to the contrary do not
demonstrate anything more than mere good faith or absence of frivolity. Reasonable jurists have not
debated the conclusion that an individual in Petitioner’s situation is not “in custody” for habeas
purposes, and the court finds they could not debate this procedural ruling. See Miranda, 238 F.3d at
1159 (“No interpretation of § 2241 that is not utterly at war with its plain language permits us to
exercise habeas corpus jurisdiction over . . . [i]mmigrants who have already been removed.”).
In addition to the jurisdictional bar that Petitioner cannot overcome, the court noted that his
claim has been time-barred since January 10, 1998. Petitioner argues a new constitutional right
recognized in Martinez v. Ryan, 132 S. Ct. 1309 (2012), restarts the limitations period, but Martinez is
2

entirely inapplicable to his case. Martinez held that procedural default of an ineffective assistance of
trial counsel claim in a petitioner’s first post-conviction motion may be excused due to ineffective
assistance of counsel at the first post-conviction motion phase. Id. at 1315. In this case, at the first
post-conviction motion phase, Petitioner did not procedurally default on his ineffective assistance of
trial counsel claim. His first post-conviction motion attorney actually raised this claim and it was
denied on the merits. Therefore, the remedy afforded by Martinez does not apply to Petitioner’s case,
and reasonable jurists could not debate this point.
Because the court denied Petitioner’s claim on two independent procedural grounds that it
finds reasonable jurists could not debate, the certificate of appealability is denied.
It is So Ordered.
_/s/ Mark G. Mastroianni________
MARK G. MASTROIANNI
United States District Judge

3