Adames v. Hinton et al

Filing 3

REPORT AND RECOMMENDATION that 2 MOTION for Temporary Restraining Order be DENIED and that this action be DISMISSED. Objections to R&R due by 1/4/2017. Signed by Magistrate Judge Terence P. Kemp on 12/21/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GABRIEL ADAMES,
CASE NO. 2:16-CV-00963
JUDGE MICHAEL H. WATSON
MAGISTRATE JUDGE KEMP

Petitioner,
v.
JOHN HINTON,
Respondent.

REPORT AND RECOMMENDATION
Petitioner has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§2254 and has also moved for a temporary restraining order. This matter is before the
Court on its own motion pursuant to Rule 4 of the Rules Governing Section 2254 Cases
in the United States District Courts. That Rule provides that the Court shall dismiss a
habeas corpus petition if “it plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief....” For the reasons that follow, the Magistrate
Judge RECOMMENDS that the motion for a temporary restraining order be DENIED
and that this action be DISMISSED.

I. Facts and Procedural History
According to the Petition, this action involves Petitioner’s underlying convictions
pursuant to his guilty plea in the Licking County Court of Common Pleas on charges of

receiving stolen property and misuse of a debit card. The trial court imposed a sentence
of sixty days incarceration. Petitioner did not file an appeal.
Petitioner indicates that he has filed a motion to withdraw his guilty plea on a
claim of the denial of the effective assistance of counsel under Padilla v. Kentucky, 559
U.S. 356 (2010), a case which held that the failure to advise a criminal defendant of the
immigration consequences of his guilty plea constitutes ineffective assistance of
counsel. According to online records of the Licking County Court of Appeals, that
motion was denied on October 12, 2016. Petitioner appealed that order, and his appeal
is now pending in the Fifth District Court of Appeals. On October 6, 2016, before the
trial court issued its ruling, Petitioner filed his petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He asserts in his petition that his state conviction is void
due to ineffective assistance of counsel.
Petitioner also indicates that deportation proceedings have commenced against
him as a result of his underlying conviction in this case. He has filed a Motion for
Temporary Restraining Order requesting that the Court restrain the Department of Justice
and the Department of Homeland Security from continuing with removal proceedings
pending the state court’s decision on his motion to withdraw his guilty plea.
II. In Custody Requirement
The Court turns first to Petitioner’s attack on his state court conviction. For the
following reasons, this Court cannot grant him any relief with respect to that conviction.

-2-

First, it appears that Petitioner’s sentence has now completely expired, and that it
expired prior to the time he filed this action. Under such circumstances, a federal
habeas court lacks jurisdiction to consider a §2254 petition. A federal habeas corpus
petitioner must be “in custody” under the conviction or sentence under attack at the
time he files his habeas corpus petition. 28 U.S.C. § 2254(a); Maleng v. Cook, 490 U.S. 488,
490–491 (1989) (citing Carafas v. La Valle, 391 U.S. 234, 238 (1968); 28 U.S.C. § 2254(a)).
“When a petitioner's sentence for a conviction has fully expired, the conviction may not
be directly challenged because the petitioner is no longer ‘in custody’ pursuant to that
conviction.” Ferqueron v. Straub, 54 Fed.Appx. 188, 189 (6th Cir. Dec.13, 2002) (citing
Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394, 401 (2001)). A prisoner who has
been released on parole on his unexpired sentence fulfills the “in custody” requirement
for habeas corpus review. A petitioner whose sentence has completely expired prior to
the filing of his habeas corpus petition, however, does not. Maleng, 488 U.S. at 492–93.
“The collateral consequences of a conviction for which the sentence has completely
expired are insufficient to render a petitioner ‘in custody’ under § 2254(a).” Ferqueron,
2002 WL 31828191, at *1 (citing Maleng, 490 U.S. at 492).
It could be argued that a petitioner's immigration status constitutes a collateral
consequence of his conviction and that he therefore may still challenge that conviction
in a §2254 action. However, it has been held that being in the custody of immigration
authorities does not satisfy the “in custody” requirement for federal habeas corpus
proceedings, without which this Court lacks jurisdiction to consider the §2254 petition.
-3-

Camera v. New York, 2012 WL 3242697, at *3 (S.D.N.Y. Aug.9, 2012) (“[I]mmigration
detention is not ‘custody’ for the purposes of establishing jurisdiction to consider
habeas petitions challenging a state court conviction pursuant to 28 U.S.C. § 2254,”
quoting Ogunwomogu v. United States, 512 F.3d 69, 70 (2d Cir. 2008). Therefore, it
appears that this Court lacks jurisdiction to consider the §2254 petition on the basis that
Petitioner’s sentence on the conviction under attack appears to have fully expired prior
to the date that he filed this action. As the Camera court said,
[The fact t]hat Petitioner is not in custody for his 1996
conviction strips this Court of jurisdiction to consider the
merits of the Petition (and whether Padilla should be applied
in this case). See Guzman v. United States, No. 11–CV–2433,
2011 WL 6097128, at *3–4 (S.D.N.Y. Dec.7, 2011) (dismissing
for lack of jurisdiction habeas petition alleging ineffective
assistance of counsel, noting that “collateral immigration
consequences of a petitioner's conviction are not sufficient to
satisfy this jurisdictional requirement,” and that “[e]ven if
[petitioner] were incarcerated by immigration authorities or
subject to deportation, his sentence would not be
challengeable on this basis alone”); see also Mainali v.
Virginia, No. 11–CV–1215, 2012 WL 2619132, at *2–3 (E.D.
Va. June 25, 2012) (holding that Padilla did not alter the
custody requirement, and that a petitioner is not in custody
after completing his sentence merely because he faces
deportation); Vasquez v. Ryan, No. 11–CV–2300, 2012 WL
959354, at *5–6 (E.D.Pa. Mar. 21, 2012) (same); Fenton v. Ryan,
No. 11–CV–2303, 2011 WL 3515376, at *2 (E.D.Pa. Aug. 11,
2011) (same); United States v. Krboyan, No. 10–CV–2016, 2010
WL 5477692, at *6–7 (E.D.Cal. Dec. 30, 2010) (same); Walker v.
Holder, No. 10–CV–10802, 2010 WL 2105884, at *1 (D.Mass.
May 24, 2010) (“Here, [petitioner] represents that he
completed his sentence and is in custody—not as a
sentenced prisoner—but as an immigration detainee.
Because he has completed his criminal sentence for the

-4-

conviction which he seeks to challenge, [petitioner] is not ‘in
custody’ for purposes of § 2254.”).
Camera v. New York, 2012 WL 3242697, at *4; see also Kandiel v. United States, 964 F.2d 794,
796 (8th Cir. 1992)(deportation proceedings constitute a collateral consequence of the
conviction insufficient to satisfy in custody requirement for §2255 proceedings) (citation
omitted); United States v. Montoya, 891 F.2d 1273, 1293 (7th Cir. 1989); United States v.
Romero–Vilca, 850 F.2d 177, 179 (3d Cir. 1988); Fruchtman v. Kenton, 531 F.2d 946, 949 (9th
Cir.1976); United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975) (per curiam)); see also
Mainali v. Virginia, 873 F.Supp.2d 748, 7511–52 (E.D.Va. June 25, 2012) (same) (citing
United States v. Esogbue, 357 F.3d 532, 534 (5th Cir. 2004) (other citations omitted)).
III. Exhaustion
There is a second reason why the Court cannot grant Petitioner any relief with
respect to his state court conviction. Even if Petitioner could satisfy the “in custody”
requirement of §2254, his claim for relief has not been properly exhausted through the
state court system..
Before a federal habeas court may grant relief, a state prisoner must exhaust his
available remedies in the state courts.

Castille v. Peoples, 489 U.S. 346, 349 (1989);

Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir. 1993). If a habeas petitioner has the right
under state law to raise a claim by any available procedure, he has not exhausted that
claim.

28 U.S.C. §2254(b), (c). Moreover, a constitutional claim for relief must be

presented to the state's highest court in order to satisfy the exhaustion requirement.

-5-

O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); Manning v. Alexander, 912 F.2d 878, 881
(6th Cir. 1990). Where alternative state remedies are available to consider the same
claim, exhaustion of one of these remedies is all that is necessary. A habeas petitioner
bears the burden of demonstrating that he has properly and fully exhausted his
available state court remedies with respect to the claims he seeks to present for federal
habeas review. Prather v. Rees, 822 F.2d 1418, 1420 n.3 (6th Cir. 1987).
Petitioner indicates he also presented his claim for relief by way of a motion for a
new trial. Although that motion was denied, his appeal from the denial of the motion is
still pending in state court. Therefore, his claim is unexhausted, and the Court may not
consider it unless and until he completes the state appellate process.
IV. Motion for Temporary Restraining Order
Petitioner also requests that the Court issue an order restraining the Department
of Justice and the Department of Homeland Security from removing him from the
United States pending resolution of his motion to withdraw his guilty plea. He has not
named any agency or officer of the United States as a party, however, and the Court
cannot issue orders of any kind against entities or persons who are not named parties in
the case. Even if the proper respondent (such as the Attorney General of the United
States) had been named, this Court lacks the authority to stay deportation proceedings
in the context of a habeas corpus petition. See Elcheikhali v. Holder, 2010 WL 4818390, at
*2 (N.D. Ohio Nov. 22, 2010)(the REAL ID Act stripped this Court of its jurisdiction to

-6-

issue such a stay, as well as the Petitioner’s right to receive one from this Court)(citing 8
U.S.C. § 1252(a)(2)(C)).
Section 106 of the REAL ID Act of 2005, Pub.L. No. 109–13,
Div. B, 119 Stat. 231, 310–11 (“REAL ID Act”) (codified at 8
U.S.C. § 1252), “clearly eliminates a habeas petition as a
means for judicial review of a removal order.” Muka v. Baker,
559 F.3d 480; see Elia v. Gonzales, 431 F.3d 268, 273 n. 5 (6th
Cir.2005) (noting that “the REAL ID Act amendments limit
habeas relief” in immigration cases). Thus, a petitioner's
“sole and exclusive” method to obtain judicial review of a
final order of removal is to petition the appropriate circuit
court of appeals for review. 8 U.S.C. § 1252(a)(5)
Id. “All court orders regarding alien removal, including stays or permanent injunctions,
are issued by the appropriate court of appeals.” Id. (citing 8 U.S.C. §§ 1252(a) (2)(D),
1252(a)(5)). See also Moussa v. Jenifer, 279 F.Supp.2d 861, 864 (E.D. Mich. Aug. 28,
2003)(“Pursuant to 8 U.S.C. § 1252(g) and AADC, this Court may not review the
Attorney General's discretionary decision to execute a removal order”)(citations
omitted). Although a federal habeas court may maintain jurisdiction to consider an
immigrant alien’s challenge to his underlying criminal conviction, see Kellici v. Gonzales,
472 F.3d 416, 419 (6th Cir. 2006)(citations omitted), Congress has made clear that all court
orders regarding alien removal must be issued by the appropriate courts of appeals.
Tejada v. Cabral, 424 F.Supp.2d296, 298 (D. Mass. March 23, 2006)(citing 8 U.S.C.
§§1252(a)(2)(C), 1252(a)(2)(D),1252(a)(5))(“One thing the REAL ID Act certainly did do. .
. was emphatically to declare that this Court was not in any way to impede orders of
removal.”) Id. Petitioner therefore must seek a stay of his order of removal from the

-7-

appropriate Court of Appeals. Id. (citing Santos v.Payant, 2005 WL 1431688, at *1
(S.D.N.Y. June 17, 2005)).
V. Recommended Disposition
For the reasons set out above, the Magistrate Judge RECOMMENDS that
Petitioner’s motion for a temporary restraining order be DENIED and that this action
be DISMISSED.
VI. Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days of the date of this report, file and serve on all parties written
objections to those specific proposed findings or recommendations to which objection is
made, together with supporting authority for the objection(s). A judge of this Court
shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made. Upon proper objections, a
judge of this Court may accept, reject, or modify, in whole or in part, the findings or
recommendations made herein, may receive further evidence or may recommit this
matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a waiver of the right to appeal

-8-

the decision of the District Court adopting the Report and Recommendation. See Thomas v.
Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any
adverse decision, they may submit arguments in any objections filed, regarding
whether a certificate of appealability should issue.
/s/ Terence P. Kemp
United States Magistrate Judge

-9-