Li v. Attorney General State of Nevada et al

Filing 19

ORDER. IT IS THEREFORE ORDERED that 10 respondents' motion to dismiss is GRANTED. The petition for writ of habeas corpus 1 is DISMISSED with prejudice. The Clerk of the Court shall enter judgment accordingly. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge Richard F. Boulware, II on 9/1/16. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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FULIN LI,
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Petitioner,
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vs.
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STATE OF NEVADA, et al.,
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Respondents.
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2:15-cv-00955-RFB-CWH
ORDER

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This is a habeas corpus proceeding under 28 U.S.C. § 2254 brought by Fulin Li. On June 26,

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2015, respondents filed a motion to dismiss Li’s petition for lack of jurisdiction and as untimely. ECF

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No. 10. This order decides that motion.

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I. PROCEDURAL BACKGROUND

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With his petition, Li seeks to challenge a conviction imposed by the state district court for Clark

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County, Nevada. On May 16, 2011, Li entered a guilty plea to one count of forgery. On October 4,

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2011, the state district court entered a judgment of conviction sentencing Li to a suspended sentence of

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12 to 32 months and a period of probation not to exceed three years.

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Li did not appeal his conviction, but on September 4, 2012, he filed a pleading in the state district

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court styled as a “motion to set aside the judgment of conviction and guilty plea agreement, habeas

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corpus petition and notice of motion.” The state district court denied the pleading on January 24, 2013.

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Li unsuccessfully appealed to the Nevada Supreme Court in a proceeding that concluded with the

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issuance of a remittitur on August 19, 2014.

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Li initiated this proceeding by mailing his petition on May 20, 2015.

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II. JURISDICTION

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The ground for relief in Li’s petition is that his trial counsel provided ineffective assistance of

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counsel by not informing him that entering a guilty plea to the forgery charge would result in mandatory

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deportation. Respondents argue that this court lacks jurisdiction over Li’s petition because he was no

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longer “in custody” at the time his federal petition was filed. Specifically, respondents contend that Li’s

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period of probation could not have extended beyond October 14, 2014, several months prior to the filing

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of his petition.

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The federal habeas statute gives the United States district courts jurisdiction to entertain petitions

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for habeas relief only from persons who are “in custody in violation of the Constitution or laws or

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treaties of the United States.” 28 U.S.C. § 2241(c)(3) (emphasis added); see also 28 U.S.C. § 2254(a).

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The U.S. Supreme Court, in Maleng v. Cook, 490 U.S. 488 (1989), noted that the Court “interpreted the

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statutory language as requiring that the habeas petitioner be ‘in custody’ under the conviction or sentence

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under attack at the time his petition is filed.” 490 U.S. at 490-91 (emphasis added) (citation omitted).

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Li argues that he remains under “constructive custody” because he was deported prior to being

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discharged from probation and is therefore likely to be subject to probation revocation in the future.

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However, his judgment of conviction specifically provided that his period of probation was not to exceed

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three years. ECF Nos. 11-13. That period had elapsed by the time Li filed his federal petition. In

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addition, respondents have provided verification that Nevada’s Division of Parole and Probation had

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administratively closed Li’s case and purged his file prior to the date Li filed the petition. ECF No. 18-1.

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Li relatedly argues that his deportation amounts to a “collateral consequence” that results in the

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continuing jurisdiction of this court. As a general matter, however, the collateral consequences doctrine

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does not benefit a petitioner who files his petition after his sentence has fully expired. Maleng, 490 U.S.

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at 492. Li cites to the following cases as support for his collateral consequences argument: Zegarra-

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Gomez v. I.N.S., 314 F.3d 1124 (9th Cir. 2003); Smith v. Ashcroft, 295 F.3d 425 (4th Cir. 2002); and

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Chong v. I.N.S., 264 F.3d 378 (3rd Cir. 2001).

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None of these cases are availing because they address the issue of whether deportation renders

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moot a petition that is otherwise properly before the court at the time of deportation. See Zegarra-

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Gomez, 314 F.3d at 1126-27 (discussing all three cases). Here, Li filed his federal habeas petition after

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his deportation and the full expiration of his sentence. “It is well-established that ‘once the sentence

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imposed for a conviction has completely expired, the collateral consequences of the conviction are not

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themselves sufficient to render an individual ‘in custody’ for the purposes of a habeas attack upon it.’”

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Resendiz v. Kovensky, 416 F.3d 952, 956 (9th Cir. 2005) (quoting Maleng v. Cook, 490 U.S. 488, 492)

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(emphasis added in Resendiz). Moreover, the Ninth Circuit has also held that a petitioner who has

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already been deported cannot avail himself of habeas corpus jurisdiction because he is no longer “in

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custody” when he files his petition. Miranda v. Reno, 238 F.3d 1156, 1158–59 (9th Cir. 2001).

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Based on the foregoing, this court is without jurisdiction to entertain Li’s habeas petition and the
case must be dismissed on that basis.

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III. TIMELINESS

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This action is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA).

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AEDPA imposes a one-year filing period for § 2254 habeas petitions in federal court. 28 U.S.C. §

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2244(d)(1). The one-year period begins to run from the latest of four possible triggering dates, with the

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most common being the date on which the petitioner’s state court conviction became final (by either the

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conclusion of direct appellate review or the expiration of time for seeking such review). Id. Statutory

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tolling of the one-year time limitation occurs while a “properly filed” state post-conviction proceeding

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or other collateral review is pending. 28 U.S.C. § 2244(d)(2).

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In addition to the jurisdictional defect discussed above, Li’s petition is also barred as untimely.

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Because he did not file a direct appeal, his conviction became final 30 days after the entry of the

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judgment of conviction on October 4, 2011. See Nev. R. App. P. 4(b)(1)(A). The collateral challenge

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he filed in state court on September 4, 2012, statutorily tolled the one year period until August 19, 2014,

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but the period resumed and expired in October 2014. Thus, his petition filed on May 20, 2015, was well

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beyond the time limit under § 2244(d)(1).

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IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 10) is

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GRANTED. The petition for writ of habeas corpus (ECF No. 1) is DISMISSED with prejudice. The

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Clerk of the Court shall enter judgment accordingly.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

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Dated this 1st day of September, 2016.

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RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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