CRUZ v. HOLDER et al

Filing 2

OPINION. Signed by Judge Kevin McNulty on 8/22/14. (jd, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ABEL GONZALEZ CRUZ,
Petitioner,

Civ. No. 145O35 (1(M)
OPINION

V.

ERIC HOLDER, Jr., et al.,
Respondents.

KEVIN MCNULTYg U.S.D.J.
I.

INTRODUCTION

Petitioner, Abel Gonzalez Cruz, is currently incarcerated at the Essex County Correctional
Facility in Newark, New Jersey, as an immigration detainee. He has brought this action pro se for
a petition for writ of error coram nobis. For the following reasons, the petition will be dismissed
for lack ofjurisdiction.
II.

BACKGROUND

Mr. Cruz is a native and citizen of the Dominican Republic. In 2004, he was convicted in
New Jersey state court for possession of a controlled substance with intent to distribute within
1000 feet of a school. On May 21, 2004, he received a sentence of four years of probation. That
conviction eventually led to immigration removal proceedings. Indeed, Mr. Cruz states that he
has been in immigration detention since October 4, 2013. According to Mr. Cruz, an Immigration
Judge denied him cancellation of removal because his 2004 offense of conviction is considered an
aggravated one under state law.
In August 2014, this Court received Mr. Cruz’s petition for a writ of error coram nobis.
He requests that this Court reopen and vacate his 2004 state conviction. He claims that his attorney

failed to advise him about the mandatory immigration consequences of pleading guilty to the state
charges. Mr. Cruz’s attorney, he says, assured him that he would never be deported. In light of
this allegedly ineffective assistance of counsel, Mr. Cruz argues that his state conviction should be
vacated.
III.

STANDARD FOR SUA SPONTE DISMISSAL

With respect to screening the instant petition, 28 U.S.C.

§ 2243 provides in relevant part:

A court, justice or judge entertaining an application for a writ of
habeas corpus shall forthwith award the writ or issue an order
directing the respondent to show cause why the writ should not be
granted, unless it appears from the application that the applicant or
person detained is not entitled thereto.

As petitioner is proceeding pro Se, his petition is held to less stringent standards than pleadings
drafted by lawyers. See Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010) (“It is the policy of
the courts to give a liberal construction to pro se habeas petitions.”) (internal quotation marks and
citation omitted); United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007) (“we construe pro se
pleadings liberally.”) (citing Haines v. Kerner, 404 U.S. 519, 520(1972)). Nevertheless, “a district
court is authorized to dismiss a [habeas] petition summarily when it plainly appears from the face
of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district
court[.]” Loncharv. Thomas, 517 U.S. 314, 320 (1996).
IV.

DISCUSSION

A. CoramNobis
Mr. Cruz seeks to have his state conviction vacated through a petition for writ of error
coram nobis. “The writ of error coram nobis is an ‘infrequent’ and ‘extraordinary’ form of relief
that is reserved for ‘exceptional circumstances.” United States v. Babalola, 248 F. App’x 409,
411 (3d Cir. 2007) (citing United States v. Stoneman, 870 F.2d 102, 106 (3d Cir. 1989); United

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States v. Osser, 864 F.2d 1056, 1059 (3d Cir. 1988); United States v. Gross, 614 F.2d 365, 368 (3d
Cir. 1980) (per curiam); Carlisle v. United States, 517 U.S. 416, 429 (1996)). A petition for writ
of error coram nobis “is used to attack allegedly invalid convictions which have continuing
consequences, when the petitioner has completed serving his sentence and is no longer ‘in custody’
for purposes of 28 U.S.C.
petitioner must

.

.

.

§ 2255.” Id. (citing Stone,nan, 870 F.2d at 105-06). “A coram nobis

show that (1) he is suffering from continuing consequences of the allegedly

invalid conviction; (2) there was no remedy available at the time of trial; and that (3) sound reasons
exist for failing to seek relief earlier.” id. at 412 (internal quotation marks and citations omitted).
Although a petitioner seeking a writ of error coram nobis faces a heavy burden, the Supreme Court
has “reaffirmed the continued existence of coram nobis relief in the appropriate circumstances.”
Id. (citing United States v. Morgan, 346 U.S. 502, 511(1954)) (footnote omitted).
I have no jurisdiction to issue the relief that Mr. Cruz seeks through a petition for writ of
error coram nobis. “[C]oram nobis is not available in a federal court as a means of attack on a
state criminal judgment.” Obado v. State of New Jersey, 328 F.3d 716, 718 (3d Cir. 2003); see
also Goodman v. Grondoisky, 427 F. App’x 81, 84 n.2 (3d Cir. 2011) (not precedential); United
States v. Ter,y, Crim. No. 92-119-07, 2014 WL 1199344, at *1 (E.D. Pa. Mar. 20, 2014) (“[C]oram
nobis is not available in a federal court to attack a petitioner’s prior state-court criminal
judgments.”) (citations omitted); Cabrera v. Walton, No. 12-6580, 2013 WL 1288212, at *3
(D.N.J. Mar. 26, 2013). If Mr. Cruz seeks to bring a petition for writ of error coram nobis, he must
bring that petition in the state court where he was convicted. See Cabrera, 2013 WL 1288212, at
*3 (“[C]oram nobis relief from a state conviction must be sought in the state court that rendered
that judgment.”); Ramnauth v. United States District Court, No. 12-2402, 2013 WL 822092, at *2
(D.N.J. Mar. 6, 2013) (“Petitioner’s only course for relief from the collateral consequences of his

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expired state conviction is to bring a common law writ of error coram nobis in the state court
where he was convicted.”). Accordingly, this Court lacks jurisdiction to consider the coram nobis
petition that attacks Mr. Cruz’s state conviction.
B. Section 2241
Mr. Cruz also invokes 28 U.S.C.

§ 2241. Title 28, United States Code, Section 2241

confers jurisdiction on district courts to issue a writ of habeas corpus with respect to a prisoner
who is “in custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C.

§ 2241(c)(3). Relatedly, Title 28, United States Code, Section 2254, confers jurisdiction

on district courts to issue “writs of habeas corpus on behalf of a person in custody pursuant to the
judgment ofa state court.

.

.

on the ground that he is in custody in violation of the Constitution or

laws or treaties of the United States.” 28 U.S.C.

§ 2254(a) (emphasis added).

Which section applies here, 2241 or 2254? In Coady v. Vaughn, 251 F.3d 480 (3d Cir.
2001), a Pennsylvania state prisoner filed habeas petitions pursuant to 28 U.S.C.

§ 2241 and 2254

which challenged a decision of the state parole board denying his application for release on parole.
The Third Circuit held that Coady’s petition must rest on

§ 2254, rather than § 2241. The Court

explained its reasoning thus:
It is a well-established canon of statutory construction that when two
statutes cover the same situation, the more specific statute takes
precedence over the more general one
The rationale for this
canon is that a general provision should not be applied “when doing
so would undermine limitations created by a more specific
provision.” In the instant case, both Sections 2241 and 2254
authorize Coady’ s challenge to the legality of his continued state
custody. However, with respect to habeas petitions filed by state
prisoners pursuant to Section 2254, Congress has restricted the
availability of second and successive petitions through Section
2244(b). Allowing Coady to file the instant petition in federal court
pursuant to Section 2241 without reliance on Section 2254 would
circumvent this particular restriction in the event that Coady seeks
to repetition for habeas relief and would thereby thwart
.

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.

.

.

Congressional intent. Thus, applying the “specific governs the
general” canon of statutory construction to this action, we hold that
Coady must rely on Section 2254 in challenging the execution ofhis
sentence.
Coady, 251 F.3d at 484-85.
Mr. Cruz’s reliance on

§ 2241 is therefore misplaced. As reaffirmed in post-Coady case

law, he can only challenge his state conviction and sentence under 28 U.S.C.

§ 2254. See

Washington v. Sobina, 509 F.3d 613, 618 n. 5 (3d Cir. 2007) (“We have held that a state prisoner
challenging the validity or execution of his state court sentence must rely on the more specific
provisions of § 2254 rather than

§ 2241.”) (citing Coady, 251 F.3d at 485); DeVaughn v. Dodrill,

145 F. App’x 392, 394 (3d Cir. 2005) (not precedential) (“A prisoner challenging either the validity
or execution of his state court sentence must rely on the more specific provisions of § 2254 and
may not proceed under

§ 2241.”) (citation omitted).

To the extent Mr. Cruz challenges his state conviction under 28 U.S.C.

§ 2241, his petition

is dismissed for lack ofjurisdiction.
C. Section 2254
That leaves 28 U.S.C.

§ 2254. Although Mr. Cruz’s petition does not cite Section 2254, 1

will construe it liberally as a habeas petition filed pursuant to 28 U.S.C.

§ 2254. To bring such a

§ 2254 petition, however, “a habeas petitioner [must] be ‘in custody’ under the conviction or
sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91
(1989). Furthermore, “[o]nce the sentence imposed for a conviction has completely expired, the
collateral consequences of that conviction are not themselves sufficient to render an individual ‘in
custody’ for the purposes of a habeas attack upon it.” Id. at 492. Mr. Cruz is not in “custody”
pursuant to his 2004 conviction; he is in immigration detention. Consequently, this Court also
lacks jurisdiction over a Section 2254 claim.
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The state conviction and sentence that Mr. Cruz challenges expired long before he filed
this petition in August 2014. Ten years ago, he was sentenced to a four-year term of probation,
which has been discharged. It is clear from the allegations of Mr. Cruz’s petition that he is not in
state custody pursuant to his state conviction; he is in the custody of the federal immigration
authorities in connection with his removal from the United States.
Because Mr. Cruz did not file this petition until long after he was released from custody
pursuant to the state conviction he attacks, I lack jurisdiction; he is not “in custody” within the
meaning of 28 U.S.C.

§ 2254. Accord Cabrera, 2013 WL 1288212, at *2..3; Ramnauth, 2013 WL

822092, at *2 (court lacked jurisdiction to consider

§ 2254 habeas petition where petitioner was

no longer in custody on state conviction but was instead an immigration detainee).
To the extent Mr. Cruz’s motion may be read as a habeas petition pursuant to 28 U.S.C.

§

2254, it must be dismissed for lack ofjurisdiction.
D. Challenge to Immigration Detention
Mr. Cruz’s petition also alludes to the permissibility of his continued immigration
detention. In his prayer for relief, Mr. Cruz states as follows:
Petitioner does not pose a danger to the community or a risk for
flight, does not have any infectious disease, and no special
circumstances exist to justify his continued detention. As Petitioner
is not dangerous, not a flight risk, his indefinite detention is not
justified and violates substantive due process. See Zathydas, 533
U.S. at 690-91.
(Dkt.No. I atp. 15.)
In Zadvydas v. Davis, 533 U.S. 678 (2001), the United States Supreme Court held that 8
U.S.C.

§ 1231 (a)(6)’ “limits an alien’s post-removal-period detention to a period reasonably

Section 1231 (a)(6) provides that:

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necessary to bring about the alien’s removal from the United States. It does not permit indefinite
detention.” 533 U.S. at 689. To state a claim under Zadvydas, the petitioner must provide facts
showing good reason to believe that there is no reasonable likelihood of his actual removal in the
reasonably foreseeable future. See id. “Zadvvdas does not delineate the boundaries of evidentiary
sufficiency, but suggests that an inversely proportional relationship is at play: the longer an alien
is detained, the less he must put forward to obtain relief.” Alexander

i’.

Attorney Gen. of United

States, 495 F. App’x 274, 276-77 (3d Cir. 2012) (not precedential) (citing Zadvydas, 533 U.S. at
701). As a rule of thumb, the Supreme Court stated that six months is a presumptively reasonable
period of post-removal detention under

§ 1231 (a)(6). See Zadvydas, 533 U.S. at 701.

In this case, Mr. Cruz does not state in his petition how long he has been under postremoval-order detention. While he states that he was placed into detention on October 4, 2013,
his motion does not state whether or when his order of removal has become administratively final.
That is critical, because Zadvydas governs post-final-removal-order detention. Federal regulations
define when a removal order is final:
An order of removal made by the immigration judge at the
conclusion of the proceedings under section 240 of the Act shall
become final:
(a) Upon dismissal of an appeal by the Board of Immigration
Appeals;
(b) Upon waiver of appeal by the respondent;
An alien ordered removed who is inadmissible under section 1982
of this title, under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4)
of this title or who has been determined by the Attorney General to
be a risk to the community or unlikely to comply with the order of
removal, may be detained beyond the removal period and, if
released, shall be subject to the terms of supervision in paragraph
(3).
8 U.S.C.

§ 123 1(a)(6).

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(c) Upon expiration of the time allotted for an appeal if the
respondent does not file an appeal within that time;
(d) If certified to the Board or Attorney General, upon the date of
the subsequent decision ordering removal; or
(e) If an immigration judge issues an alternate order of removal in
connection with a grant of voluntary departure, upon overstay of
the voluntary departure period, or upon the failure to post a
required voluntary department bond within 5 business days. If
the respondent has filed a timely appeal with the Board, the order
shall become final upon an order of removal by the Board or the
Attorney General, or upon overstay of the voluntary departure
period granted or reinstated by the Board or the Attorney
General.
8 C.F.R.

§ 1241.1(a).

Mr. Cruz’s petition says nothing about his removal proceedings, except for one allegation that
the Immigration Judge at some point denied his cancellation of removal. It says nothing about
further proceedings (or any waiver thereof), so it is impossible to determine whether any removal
order is final. Nor does the motion give a date when such an order became final, permitting the
Court to determine the length of post-removal-order detention. Nor does the petition contain any
allegations tending to establish that, despite an order or removal, there is no reasonable likelihood
of Mr. Cruz’s actual removal in the reasonably foreseeable future.
Accordingly, the petition fails to state a Zadvydas claim. See Mohammed v. I-folder, No. 127282, 2012 WL 6094129, at *3 (D.N.J. Dec. 7, 2012) (finding habeas petition failed to state a
Zathydas claim where petitioner failed to allege facts establishing the date the final order of
removal was entered against him and failed to allege any facts demonstrating that there is good
reason to believe that there is no significant likelihood of removal in the reasonably foreseeable
future); Nagorskiy v. Weber, No. 10-2406, 2010 WL 2024489, at *3 (D.N.J. May 18, 2010)
(dismissing habeas petition without prejudice where petitioner failed to make any allegation that

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provides good reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future).
V.

,

it will be dismissed without prejudice

CONCLUSION

For the foregoing reasons, the petition, to the extent it challenges Mr. Cruz’s 2004 state
conviction, will be dismissed with prejudice for lack ofjurisdiction. To the extent that the petition
seeks to assert a Zadvydas claim with respect to the length of his immigration detention, it will be
dismissed without prejudice for failure to state a claim. An appropriate order will be entered.

DATED: August 22, 2014
KEVIN MCNULTY
United States District Judge

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