Calleja v. Ring

Filing 22

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the petition of Javier Pena Calleja for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on August 20, 2015. (BRP)

UNITED STATES DISTRICT COURT
THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAVIER PENA CALLEJA,
Petitioner,
v.
MELISSA RING,
Respondent.

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Case No. 4:12CV01433 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the petition of Javier Pena Calleja for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, seeking an order of deportation by the
United States Department of Justice. Petitioner is currently civilly committed to the
custody of the Missouri Department of Mental Health’s Sex Offenders Rehabilitation and
Treatment Services (“SORTS”) program, within the Fulton State Hospital in Fulton,
Missouri, pursuant to the judgment of the Circuit Court of St. Louis County. For the
reasons set forth below, the petition shall be denied.
BACKGROUND
On March 29, 2004, Petitioner was convicted in Missouri state court of statutory
sodomy and sentenced to five years’ imprisonment. He was discharged from the
jurisdiction of the Missouri Department of Corrections effective October 13, 2008.
Petitioner apparently was thereafter detained pending civil commitment proceedings,
pursuant to Missouri’s Sexually Violent Predator Act (“MSVPA”), Mo. Rev. Stat. §§

632.480-632.513. On December 1, 2009, an immigration judge of the Immigration
Court of United States Department of Justice issued an Order ordering Petitioner
removed from the United States to Mexico. See Pena-Calleja v. Blake, 4:11-CV-755FRB, Doc. No. 1-1, at 22. This is Petitioner’s third attempt to obtain federal habeas relief
from this court based on the December 1, 2009 Order of Removal.
First, on June 28, 2010, while confined at the St. Genevieve, Missouri, County
Jail, awaiting trial on whether he would be civilly adjudicated to be a sexually violent
predator under the MSVPA, Petitioner brought a 28 U.S.C. § 2241 habeas corpus action
in this court, seeking his immediate removal from the United States, based on the
December 1, 2009 Order of Removal. Petitioner claimed that the State of Missouri could
not detain him for civil proceedings because he was subject to a federal Order of
Removal. On August 25, 2010, the Hon. Stephen N. Limbaugh, Jr. dismissed Petitioner’s
action, holding,
Petitioner does not have a constitutional right to be removed from the
United States. Petitioner is not exempt from civil commitment proceedings
in the State of Missouri simply because he is not a citizen of the United
States. And petitioner does not have a legal right to enforce an order of an
Immigration Judge in this Court . . . Finally, petitioner has not made a
substantial showing of the denial of a constitutional right.
Pena Calleja v. Stolzer, No. 4:10-CV-1158 FRB, 2010 WL 3362596, at *1 (E.D.
Mo. Aug. 25, 2010) (“Pena Calleja I”). The Court concluded that Petitioner was
not in custody in violation of the Constitution or laws or treaties of the United
States, and so was not entitled to federal habeas relief. Id.

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Meanwhile, on July 7, 2010, Plaintiff was found by a jury to be a sexually violent
predator, under state law, and was civilly committed to SORTS. On April 25, 2011,
Petitioner filed an action in this court under § 2254, claiming that his civil commitment
by Missouri was illegal in light of the federal Order of Removal, which should have taken
precedence. Pena-Calleja v. Blake, 4:11-CV-755-FRB, 2011 WL 2619632 (E.D. Mo.)
(Pena Calleja II). By order dated July 1, 2011, the court held that the doctrines of res
judicata and collateral estoppel barred the action. The Court further held that habeas
relief was barred “for all the reasons the Court stated in [Pena-Calleja I].” Id. at *1. On
October 21, 2011, the Eighth Circuit Court of Appeals denied Petitioner’s application for
a certificate of appealability.
On April 3, 2012, the Missouri Court of Appeals affirmed the July 7, 2010
judgment against Petitioner in the civil commitment case, rejecting Petitioner’s only
argument on appeal, namely, that the probate court erred in granting the state’s motion in
limine to exclude evidence of Petitioner’s immigration status and any order of
deportation. In re Calleja, 360 S.W.3d 801, 803 (Mo. Ct. App. 2011).
Petitioner filed the present action on August 6, 2012. He claims that he should be
released from his commitment at SORTS and deported to Mexico because he is a
Mexican citizen who is in the United States illegally and was ordered removed from the
United States; the State of Missouri is wrongfully ignoring federal law by refusing to
honor the December 2009 removal order; and he already served his criminal sentence for
the sodomy conviction. In addition, Petitioner claims that he received ineffective
assistance of trial counsel in the sodomy case, because counsel told Petitioner he would
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be deported after he completed his sentence for the sodomy conviction and did not advise
Petitioner of any potential collateral consequences of his conviction – namely, a sexually
violent predator commitment.
Respondent argues that all of Petitioner’s claims are barred by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(b)(3)(A), which
provides, “Before a second or successive application permitted by this section is filed in
the district court, the applicant shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application.” Respondent argues that the
current petition is “successive” because all of Petitioner’s claims were or could have been
raised in Pena Calleja I and/or Pena Calleja II.
DISCUSSION
(AEDPA), 28 U.S.C. § 2244(b), imposes three requirements on second or
successive habeas petitions. First, any claim “that was presented in a prior
application shall be dismissed.” Id. at § 2244(b)(1). If a claim was not
already adjudicated, § 2244(b)(2) requires its dismissal unless it relies on “a
new and retroactive rule of constitutional law or new facts showing a high
probability of actual innocence.” Gonzalez v. Crosby, 545 U.S. 524, 530
(2005). Finally, before filing a second or successive petition in district
court, a habeas applicant must receive an order authorizing it from the court
of appeals. Id. at § 2244(b)(3).
United States v. Lee, ___ F. 3d ___, 2015 WL 4173773, at *2 (8th Cir. July 13, 2015).
Here it is clear that Petitioner’s claims regarding his entitlement, based on the
2009 Order of Removal, to immediate release from civil confinement (and deportation to
Mexico) have been ruled on by this court in Pena Calleja II, and the Eighth Circuit Court
of Appeals denied issuing a certificate of appealability. Accordingly those claims are

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dismissed. Moreover, Petitioner has not shown that he has met the precertification
requirement of § 2244(b)(3).
Petitioner’s ineffective assistance of counsel claim relates to a different state court
judgment than the one underlying his present confinement. This claim relates to the 2004
state court conviction for sodomy, and as such is clearly time-barred by the one-year
statute of limitations for actions under § 2254.
In sum, the Court concludes that Petitioner is not entitled to federal habeas relief.
Furthermore, the Court does not believe that reasonable jurists might find the Court’s
assessment of Petitioner’s claims for habeas relief debatable or wrong, for purposes of
issuing a Certificate of Appealability under 28 U.S.C. § 2254(d)(2). See Miller-El v.
Cockrell, 537 U.S. 322, 338 (2003) (standard for issuing a Certificate of Appealability)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the petition of Javier Pena Calleja for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED.
A separate Judgment shall accompany this Memorandum and Order.

_________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 20th day of August, 2015.

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