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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA JERONIMO VASQUEZ v. WILLIAM H. RYAN, JR., et al. : : : : : CIVIL ACTION NO. 11-2300 MEMORANDUM OPINION Savage, J. March 20, 2012 Jeronimo Vasquez moves for reconsideration of our dismissal of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Vasquez, a noncitizen immigrant, seeks relief from a state court conviction, arguing that his lawyer’s failure to inform him of the immigration consequences of his guilty plea constituted ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). Because Vasquez was not “in custody,” we dismissed his petition for lack of subject matter jurisdiction. Vasquez then timely moved for reconsideration, arguing that we took an overly narrow view of the custody requirement. After a thorough review of the law and facts of this case, we conclude that our previous decision was correct. At the same time, we note that Vasquez’s habeas petition was untimely. Therefore, we shall deny the motion for reconsideration. Background On June 11, 2002, Vasquez pleaded guilty to three drug-related offenses in the Court of Common Pleas of Bucks County. According to Vasquez, his public defender did not inform him before he pleaded guilty that, as a noncitizen immigrant, he might be deported as a result of his guilty plea. There is no question that his drug conviction renders him subject to deportation. See 8 U.S.C. § 1227(a)(2)(B)(i) (2006); Padilla v. Kentucky, 130 S.Ct. 1473, 1483 (2010). The government has taken no action to deport him. On the same day he pleaded guilty, Vasquez was sentenced to two years probation. Two months later, he filed a petition under Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. § 9541 et seq. (1997), claiming ineffective assistance of counsel. His petition was denied on January 17, 2003. On March 31, 2010, the Supreme Court in Padilla v. Kentucky held that a defense attorney’s failure to inform her client of the immigration consequences of his guilty plea may constitute ineffective assistance of counsel entitling the defendant to post-conviction relief. 130 S.Ct. at 1483-84. Exactly one year later, Vasquez filed his petition for writ of habeas corpus, arguing that Padilla established a right “newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review” under 28 U.S.C. § 2244(d)(1)(C). By the time he filed his petition, Vasquez had served his probationary sentence. Standard of Review Pursuant to Federal Rule of Civil Procedure 59(e), Vasquez moves for reconsideration of our dismissal of his petition for lack of subject matter jurisdiction. A Rule 59(e) motion is subject to the “sound discretion of the district court.” Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 272 (3d Cir. 2001). A party may move the court to alter or amend a judgment under Rule 59(e) on one of three grounds: “(1) an intervening change in the law; (2) the availability of new evidence; or (3) the need to correct clear error of law or prevent manifest injustice.” Cottrell v. Good Wheels, No. 113409, 2012 WL 171941, at *3 (3d Cir. Jan. 23, 2012) (per curiam) (citing N. River Ins. Co. 2 v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). Without saying so, Vasquez relies on the third ground, arguing that we erroneously held that he was not in custody when he filed his habeas petition. He contends that he is in custody because he is excludable as a result of his criminal conviction. Consequently, he cannot travel outside the United States because he could not legally reenter. He contends that these consequences are sufficient to satisfy the “in custody” requirement for habeas relief. Discussion A petition under 28 U.S.C. § 2241 is a vehicle for challenging the “execution” of the defendant’s state court sentence, such as a denial of parole. Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005) (quoting Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001)). However, Vasquez does not attack the execution of his sentence. Rather, he challenges the validity of his underlying conviction. A petition for relief from an unlawful state court conviction is properly brought under 28 U.S.C. § 2254. Coady, 251 F.3d at 485-86.1 Therefore, we shall analyze Vasquez’s petition as one under § 2254. Timeliness Because we determined that Vasquez was not in custody, we did not address other issues raised by his petition in our original order, including whether the petition was timely 1 The Third Circuit recognized in W oodall that the applicability of § 2241 is, in som e respects, “far from clear.” 432 F.3d at 241. Even if Vasquez could proceed under § 2241, however, his petition would suffer the sam e fate as it does under § 2254. Vasquez’s petition is untim ely under § 2244(d)(1), which applies to petitions challenging “custody pursuant to the judgm ent of a State court” under both § 2241 and § 2254. Additionally, § 2241(c)(1) contains the sam e “in custody” requirem ent as § 2254(a), which Vasquez fails to m eet. Amenuvor v. Mazurkiewicl, No. 11-4086, 2012 W L 75960, at * 2 (3d Cir. Jan. 11, 2012) (per curiam ) (citing Kolkevich v. Att’y Gen., 501 F.3d 323, 334, n.6 (3d Cir. 2007)). 3 filed. We now determine that Vasquez’s petition was untimely. The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a one-year statute of limitations for filing a § 2254 habeas corpus petition. 28 U.S.C. § 2244(d)(1); Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005). The statute provides that the one-year period begins with the latest of one of four “triggering events:” (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1); Fielder v. Varner, 379 F.3d 113, 116 (3d Cir. 2004). The statutory period is tolled while a “properly filed application for State post-conviction or other collateral review” is pending. 28 U.S.C. § 2244(d)(2); Pace, 544 U.S. at 410; Heleva v. Brooks, 581 F.3d 187, 191 (3d Cir. 2009). Vasquez’s conviction became final nearly ten years ago, and his PCRA petition was denied more than nine years ago. Despite this passage of time, Vasquez argues that his petition was timely under § 2244(d)(1)(C) because the Supreme Court in Padilla recognized a new constitutional right when it held that a noncitizen defendant may be denied effective assistance of counsel if his attorney fails to advise him that a guilty plea might result in deportation. If his argument is correct, Vasquez’s petition is timely because 4 he filed it on the last day of the statute of limitations. To determine whether Padilla provides a triggering event for the statue of limitations under § 2244(d)(1)(C), we look to the retroactivity rules from the Supreme Court’s decision in Teague v. Lane, 489 U.S. 288 (1989). See Reinhold v. Rozum, 604 F.3d 149, 153-54 (3d Cir. 2010). Teague “set forth two regimes governing the retroactive application of constitutional principles to criminal cases” by “divid[ing] the world into two categories, ‘old rules’ and ‘new rules.’” United States v. Orocio, 645 F.3d 630, 637 (3d Cir. 2011). If a rule of criminal law announced in a case “was not dictated by precedent existing at the time the defendant’s conviction became final,” that rule is a “new rule” under Teague. Id. (quoting Teague, 489 U.S. at 301). A new rule does not apply retroactively on collateral review except under two narrow exceptions: “(1) the new rule places certain kinds of criminal conduct beyond the power of the criminal law-making authority to proscribe; or (2) the new rule is a watershed rule of criminal procedure that alters our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction.” Id. (quoting Teague, 489 U.S. at 311) (internal quotations and alterations omitted); see also Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (stating that the Teague exceptions apply only in “limited circumstances”). Conversely, an “old rule”–one that is dictated by existing precedent–is always retroactively applicable on both direct and collateral review. Orocio, 645 F.3d at 637 (citing Whorton v. Bockting, 549 U.S. 406, 416 (2007)). Although Teague informs our interpretation of § 2244(d)(1)(C), the Teague retroactivity rules and § 2244(d)(1)(C) are different in an important respect. The statute only codifies Teague’s “new rule” regime. It does not codify Teague’s “old rule” regime. 5 Section 2244(d)(1)(C) explicitly requires that the Supreme Court case at issue “newly recognize” a right, which refers to announcing a “new rule” under Teague. See Reinhold, 604 F.3d at 152-54 (looking to Teague to determine whether a right was newly recognized under § 2244(d)(1)(C)). Therefore, the Court’s pronouncement of an old rule cannot trigger the statute of limitations under § 2244(d)(1)(C). See Peterson v. Cain, 302 F.3d 508, 511-15 (5th Cir. 2002) (holding that because the Supreme Court did not announce a new rule in Campbell v. Louisiana, 523 U.S. 392 (1998), that decision was not a triggering event for the statute of limitations under § 2244(d)(1)(C)). The Third Circuit has held that Padilla announced an old rule because its holding “followed directly from Strickland and long-established professional norms” regarding effective assistance of counsel. Orocio, 645 F.3d at 641.2 Therefore, under circuit precedent, Padilla cannot be a triggering event for the statute of limitations under § 2244(d)(1)(C).3 In the alternative, Vasquez argues that he is entitled to equitable tolling of the 2 The Third Circuit went on to hold that Orocio could avail him self of the Padilla decision on collateral review. However, Orocio did not consider whether the petition was tim ely; rather, it considered only whether Padilla was retroactive under Teague. Although there is considerable overlap between Teague and various provisions of AEDPA, including § 2244(d)(1)(C), the Suprem e Court and Third Circuit have held that Teague and those AEDPA provisions present distinct inquiries, and that a petitioner m ust satisfy both independently. See Horn v. Banks, 536 U.S. 266, 272 (2002) (“[I]f our post-AEDPA cases suggest anything about AEDPA's relationship to Teague, it is that the AEDPA and Teague inquiries are distinct. . . . Thus, in addition to perform ing any analysis required by AEDPA, a federal court considering a habeas petition m ust conduct a threshold Teague analysis when the issue is properly raised by the state.” (internal citations om itted)); Greene v.Palakovich, 606 F.3d 85, 100-01 (3d Cir. 2010) (citing Horn, 536 U.S. at 272). 3 The Seventh and Tenth Circuits have disagreed with Orocio and have held that Padilla announced a new rule under Teague. See United States v. Chang Hong, – F.3d –, No. 10-6294, 2011 W L 3805763, at *7-8 (10th Cir. Aug. 30, 2011); Chaidez v. United States, 655 F.3d 684, 694 (7th Cir. 2011). The Tenth Circuit went on to determ ine that Padilla was not retroactively applicable on collateral review because neither of the two Teague exceptions applied. Chang Hong, 2011 W L 3805763, at *9-10. The Tenth Circuit therefore held that Padilla did not provide a triggering event for the statute of lim itations under § 2255(f)(3)–a nearly identical provision to § 2244(d)(1)(C) that applies to challenges to federal detention brought under § 2255. The Seventh Circuit did not consider the retroactivity issue. 6 statute of limitations for two reasons. First, he argues that Padilla provided his earliest meaningful opportunity to challenge his guilty plea because Pennsylvania law does not recognize his constitutional claim. Second, he contends that strict application of the statute of limitations would be unfair because the consequences of his guilty plea far outweigh the gravity of the offense. A petitioner seeking equitable tolling bears the burden of establishing: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way” and prevented him from filing on time. Pace, 544 U.S. at 418. Equitable tolling should be used sparingly. LaCava v. Kyler, 398 F.3d 271, 275 (3d Cir. 2005) (citing Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999)). The existence of unfavorable state law is not an “extraordinary circumstance” that prevents the petitioner from filing on time. See Corrigan v. Barbery, 371 F. Supp. 2d 325, 331 (W.D.N.Y. 2005). The purpose of filing a § 2254 petition is to challenge a conviction imposed and upheld under state law in violation of the Constitution or federal law. The existence of unfavorable state law is the reason a petitioner seeks habeas corpus. It does not prevent the petitioner from doing so.4 Additionally, the alleged disparity between Vasquez’s crime and the consequences of deportation is not an extraordinary circumstance. The term “extraordinary circumstance” refers not to “the uniqueness of the petitioner’s circumstances,” but rather 4 Sim ilarly, a favorable decision is not a “factual predicate” that triggers the statute of lim itations under § 2244(d)(1)(D). Mitchell v. Beard, No. 06-4746, 2010 W L 1135998, at *1 n.3 (E.D. Pa. Mar. 24, 2010) (Gardner, J.) (citing circuit court cases). As Judge Gardner recognized, allowing a petitioner to wait until any favorable case is decided would eviscerate § 2244(d)(1)(C). Id. The petitioner could wait indefinitely to file his habeas petition until any favorable decision, even one that did not m eet the high standard of § 2244(d)(1)(C), was handed down. 7 to the severity of the obstacle that prevented the petitioner from filing on time. Bolarinwa v. Williams, 593 F.3d 226, 231-32 (2d Cir. 2010) (quoting Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008)). Vasquez must have filed his petition within one year of the date his conviction became final, plus the tolling period while his PCRA petition was pending. 28 U.S.C. § 2244(d)(1)(A), (d)(2). Consequently, he was required to file his petition in or around November 2003. Because he failed to file until 2011, his petition was untimely. Subject Matter Jurisdiction Even if Vasquez’s petition had been timely filed, we reaffirm our ruling that we lack subject matter jurisdiction. To establish subject matter jurisdiction over his § 2254 petition, Vasquez must show that, at the time he filed his petition, he was “in custody” pursuant to the conviction he is attacking. Obado v. New Jersey, 328 F.3d 716, 717 (3d Cir. 2003) (per curiam) (citing Maleng v. Cook, 490 U.S. 488, 490-92 (1989)).5 We agree with Vasquez that the custody requirement is read liberally and is not limited to physical restraint. Id. Rather, “custody” refers to “significant restraints on liberty which [are] not shared by the public generally, along with some type of continuing governmental supervision.” Id. (quoting Barry v. Bergen Cnty. Prob. Dep’t, 128 F.3d 152, 160 (3d Cir. 1997)) (internal quotations and alterations omitted). For example, a petitioner is considered to be in custody while he is on parole because the terms of parole include 5 W e determ ine subject m atter jurisdiction by looking at the petitioner’s condition only at the tim e he filed his petition. Obado, 328 F.3d at 717 (citing Maleng, 490 U.S. at 490-92). Thus, the court m aintains jurisdiction when the petitioner is released from custody while the action is pending, so long as he m et the jurisdictional requirem ents when he filed. See Carafas v. LaVallee, 391 U.S. 234, 238-39 (1968); see also Chong v. Dist. Dir., INS, 264 F.3d 378, 382-83 (3d Cir. 2001). 8 many restrictions on his liberty. Jones v. Cunningham, 371 U.S. 236, 241-43 (1963); see also Justices of Bos. Mun. Court v. Lydon, 466 U.S. 294, 300-01 (1984) (holding that the petitioner was in custody after he had been released on personal recognizance pending retrial). Vasquez argues that the threat of future deportation proceedings render him in custody. He reasons that, like a parolee, he suffers from significant restrictions on his liberty because of his conviction. In particular, he claims that he cannot travel abroad because he “would almost certainly be denied reentry” into the United States. A petitioner is no longer in custody after his sentence has fully expired. See Maleng, 490 U.S. at 492 (“While we have very liberally construed the ‘in custody’ requirement for purposes of federal habeas, we have never extended it to the situation where a habeas petitioner suffers no present restraint from a conviction.”). This is true even where the petitioner suffers collateral restrictions on his liberty because he has been convicted of a crime, such as loss of the right to vote or inability to hold public office. Id. at 491-92.6 6 In a case such as this where the petitioner has been released from custody but continues to suffer collateral harm because of his conviction, the questions of subject m atter jurisdiction and m ootness m ight easily be confused. These questions are im portantly distinct. See Spencer v. Kemna, 523 U.S. 1, 7 (1998) (distinguishing the jurisdictional “in custody” requirem ent from m ootness). W hereas jurisdiction is determ ined by a one-tim e snapshot of the petitioner’s condition at the tim e of filing, see supra note 5, the doctrine of m ootness requires that the case present a live controversy at all stages of the proceedings. Id.; Burkey v. Marberry, 556 F.3d 142, 147 (3d Cir. 2009) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990)). Although the petitioner’s release from custody while the case is pending does not affect jurisdiction, it m ay render the case m oot. Spencer, 523 U.S. at 7. This is because release from custody often elim inates the only source of the petitioner’s harm and leaves the court unable to provide any m eaningful relief. Id; Burkey, 556 F.3d at 147. However, the case is not m oot post-release where the petitioner continues to suffer collateral consequences of the conviction. Such consequences give the petitioner a continuing interest in the case and m ay be redressed by a favorable ruling. Spencer, 523 U.S. at 7. Vasquez’s petition is not m oot because the threat of deportation creates a continuing controversy. See United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988) (“Following Carafas, we conclude that Rom ero-Vilca’s petition is not m oot in light of the potential for deportation that flows from his conviction.”). Conversely, if the petitioner was not in custody at the tim e of filing, the later existence of collateral 9 In Maleng, the Supreme Court held that a petitioner who was currently serving a sentence from a 1976 conviction could not challenge the validity of a 1958 conviction, even though the existence of the earlier conviction enhanced his sentence for the later one. Id. at 492-93. The Court determined that because the petitioner had completed his original sentence, he was no longer in custody pursuant to that conviction. Id. at 492. The Court found it immaterial that he was still suffering a collateral consequence of the original conviction. Id. Courts of appeals have uniformly held that a petitioner facing deportation as a result of his conviction is not in custody once he has completed his sentence prior to filing a habeas petition. See Ogunwomoju v. United States, 512 F.3d 69, 75 (2d Cir. 2008); Resendiz v. Kovensky, 416 F.3d 952, 956-58 (9th Cir. 2005); Broomes v. Ashcroft, 358 F.3d 1251, 1254 (10th Cir. 2004); Kandiel v. United States, 964 F.2d 794, 796 (8th Cir. 1992). Vasquez argues that the Supreme Court’s recent holding in Padilla altered the rule in Maleng and its progeny. In Padilla, the Supreme Court of Kentucky had distinguished between “collateral” matters in a defendant’s decision to plead guilty–for example, certain rights that a defendant may lose in the future because he is a convicted felon–and those matters that directly relate to the sentence the court may impose, such as the nature and duration of the sentence. 130 S.Ct. at 1481. The state court had determined that immigration consequences were a collateral matter, and that a lawyer’s failure to advise a defendant on those consequences did not violate the Sixth Amendment under Stickland. consequences does not give the court jurisdiction. Maleng, 490 U.S. at 492. The petitioner either m eets the “in custody” requirem ent at the tim e of filing or not at all. 10 Id. Rejecting the state court’s approach, the Supreme Court concluded that “[t]he collateral versus direct distinction is . . . ill-suited to evaluating a Strickland claim concerning the specific risk of deportation.” Id. at 1482. The Court, upon examining the nature of deportation itself, noted that deportation is a “particularly severe ‘penalty’” that is “intimately related to the criminal process,” and is “nearly an automatic result for a broad class of noncitizen offenders.” Id. at 1481. The Court therefore held that an attorney’s failure to advise a client about the immigration consequences of a guilty plea may constitute ineffective assistance of counsel. Id. at 1482. Thus, courts must perform a standard Strickland analysis in such a case. Id. at 1482-83. Vasquez argues that Padilla, by holding that deportation is not merely a collateral consequence of a conviction, implicitly expanded the definition of “in custody” under § 2254 to include petitioners facing deportation proceedings. He points out that Maleng and its progeny drew a bright line for the “in custody” requirement between petitioners who are still serving their sentences when they file and those who are merely facing “collateral consequences” of their convictions. He claims that Padilla rejected that bright line as it pertains to deportation, and held that courts should treat the threat of deportation like part of a defendant’s sentence because of its severity and closeness to the criminal process. Therefore, according to Vasquez, he is in custody just as he would be if he were still serving his sentence from his guilty plea. At least one district court has agreed with this argument. See Rodriguez v. United States, No. 10-23718, 2011 WL 3419614, at *5-6 (S.D. Fla. Aug. 4, 2011) (holding that, after Padilla, a petitioner who had fully served her sentence was in custody because she faced deportation). Vasquez’s argument conflates two distinct inquiries. The Padilla Court was not 11 faced with the jurisdictional question of whether the defendant was in custody for the purposes of obtaining federal post-conviction relief.7 Rather, it considered whether the Sixth Amendment entitles a criminal defendant to be advised on the possible immigration consequences of his guilty plea before he pleads guilty. That question goes to the merits of Vasquez's constitutional claim. The simple fact that courts use the term “collateral consequences” in reference to both § 2254 and the Sixth Amendment does not mean that they are referring to identical concepts. We determine the meaning of a particular term not in a vacuum but in light of the legal context surrounding it. See Johnson v. United States, 130 S.Ct. 1265, 1270 (2010) (“[W]e do not force term-of-art definitions into contexts where they plainly do not fit . . . .” (quoting Gonzales v. Oregon, 546 U.S. 243, 282 (2006) (Scalia, J., dissenting) (internal quotations omitted))). The definition of “collateral consequences” in one context is not necessarily the same as that in another context. Padilla did not address the “in custody” requirement, and no decision has purported to alter Maleng’s bright-line rule that a petitioner is not in custody after he has fully served his sentence. See Fenton v. Ryan, No. 11-2303, 2011 WL 3515376, at *2 (E.D. Pa. Aug. 11, 2011) (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); see also United States v. Krboyan, No. 10-2016, 2010 WL 5477692, at *6-7 (E.D. Cal. Dec. 30, 2010) (same); Walker v. Holder, No. 10-10802, 2010 WL 2105884, at *1 (D. Mass. 7 Padilla did not file a federal habeas petition. Rather, he appealed from the Suprem e Court of Kentucky’s denial of his state law petition for post-conviction relief. Padilla, 130 S.Ct. at 1478. Additionally, Padilla was in state custody when he filed his petition. See Commonwealth v. Padilla, 253 S.W .3d 482, 483 (Ky. 2008). 12 May 24, 2010) (same). Padilla may recognize that Vasquez had a constitutional right to be counseled about possible deportation, but it does not give the court jurisdiction over his habeas petition. Even if Vasquez's argument had merit, accepting it would require us to decide that the Supreme Court’s holding on one matter implicitly overturned its holding on a separate matter. It is not for the district court to hold that the Supreme Court has implicitly overturned itself. When the Supreme Court speaks directly to an issue, lower courts must follow that decision even if a later Supreme Court decision on a different issue appears to undermine its reasoning. Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); United States v. Weaver, 267 F.3d 231, 250-51 (3d Cir. 2001). It is for the Supreme Court to overturn its own rulings. Rodriguez de Quijas, 490 U.S. at 484; Weaver, 267 F.3d at 251. We are bound by Maleng. Therefore, because we lack subject matter jurisdiction, we shall deny the motion for reconsideration. Certificate of Appealability As an alternative to reconsideration, Vasquez seeks a certificate of appealability (“COA”) under 28 U.S.C. § 2253. A petitioner “has no absolute entitlement to appeal a district court’s denial of his petition.” Miller-El v. Cockrell, 537 U.S. 322, 335 (2003). Rather, a petitioner must obtain a COA from the district court or court of appeals to appeal the district court’s denial of the petition. 28 U.S.C. § 2253(c)(1); see also Gonzalez v. Thaler, 132 S.Ct. 641, 649 n.5 (2012) (noting that district courts have the power to issue COAs); Walker v. Gov’t of the V.I., 230 F.3d 82, 89-90 (3d Cir. 2000) (discussing the COA requirement). If no COA has been issued, the court of appeals does not have jurisdiction 13 to consider the appeal. Miller-El, 537 U.S. at 336. We dismiss Vasquez’s petition on two procedural grounds–untimeliness and lack of subject matter jurisdiction. Thus, Vasquez must demonstrate that: (1) reasonable jurists would find it debatable whether he has stated a valid underlying constitutional claim and: (2) “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); see also Satizabal v. Folino, 318 F. App’x 78, 80-81 (3d Cir. 2009); Fenton, 2011 WL 3515376, at *1.8 Our ruling that Vasquez’s petition is untimely is not debatable by jurists of reason. It cannot plausibly be argued that Padilla recognized a new right that is retroactively applicable on collateral review. Reasonable jurists could debate whether the Third Circuit in Orocio correctly held that Padilla announced an “old rule” under Teague. However, even if Padilla announced a “new rule,” it is clear that Padilla’s rule does not fall under either of the two exceptions to Teague’s maxim of non-retroactivity for new rules. Padilla did not “place[] certain kinds of criminal conduct beyond the power of the criminal lawmaking authority to proscribe,” nor was it “a watershed rule of criminal procedure that alters our understanding of bedrock procedural elements that must be found to vitiate the fairness of a particular conviction.” Orocio, 645 F.3d 637 (quoting Teague, 489 U.S. at 311) (internal quotations and alterations omitted). The Supreme Court has held that only a decision of the magnitude of Gideon v. Wainwright, 372 U.S. 335 (1963), which recognized an indigent criminal defendant’s right to a court-appointed attorney, is 8 If we dism issed the petition on the m erits of his constitutional claim , Vasquez would only have to show “that reasonable jurists would find the district court’s assessm ent of the constitutional claim s debatable or wrong.” Slack , 529 U.S. at 484. Because we dism iss the petition on procedural grounds, he m ust also show that our procedural rulings are debatable am ong reasonable jurists. Id. 14 sufficient to satisfy Teague’s “watershed” exception. Beard v. Banks, 542 U.S. 406, 41718 (2004). Although Padilla may be a significant opinion for noncitizen defendants deciding whether to plead guilty, it clearly does not alter our system of criminal procedure in any extent comparable to Gideon. See United States v. Chang Hong, – F.2d –, No. 106294, 2011 WL 3805763, at *9 (10th Cir. Aug. 30, 2011) (“Simply put, Padilla is not Gideon.”). Thus, it is clear beyond reasonable debate that Padilla does not provide a triggering event for the statute of limitations under § 2244(d)(1)(C). Whether our ruling on subject matter jurisdiction is debatable among reasonable jurists presents a more difficult question. Another court in this district recently denied a petitioner’s request for a COA in a case with virtually identical facts. See Fenton, 2011 WL 3515376, at *2 (Schiller, J.).9 Fenton pleaded guilty to a drug offense in state court. After he completed his sentence, he filed for habeas relief in federal court, arguing that he was in custody because he faced possible deportation. Like Vasquez, Fenton argued that Padilla changed the definition of “in custody” such that it now includes individuals who might be deported because they have been convicted of a crime. Judge Schiller, rejecting that argument, held that Fenton was not in custody when he filed his petition. Id. Judge Schiller also denied Fenton’s request for a COA, stating that “courts across the country have concluded that removal proceedings and removal itself–much less the possibility of removal proceedings–do not constitute custody for habeas purposes,” and that “[r]easonable jurists thus could not find the Court’s denial of habeas relief debatable.” Id. The Third Circuit upheld Judge Schiller’s ruling, including his denial of a COA. 9 Fenton was represented by the sam e attorney as Vasquez. The two cases were filed on the sam e day. 15 Fenton v. Attorney Gen. of PA, No. 11-3297 (3d Cir. Nov. 9, 2011). In its order, the court stated that “[f]or substantially the same reasons given by the District Court, Appellant has not shown that reasonable jurists would debate the District Court’s denial of his motion for reconsideration of its dismissal of his petition . . . .” We shall follow the Third Circuit’s guidance in Fenton and deny Vasquez a COA. Conclusion Vasquez did not file his petition until nearly ten years after he was convicted and more than nine years after his PCRA petition was denied. The Supreme Court’s decision in Padilla announcing an “old rule” under Teague does not provide Vasquez a triggering event for the statute of limitations under § 2244(d)(1)(C). Therefore, his petition is untimely. We lack subject matter jurisdiction because Vasquez had completed his sentence when he filed his habeas petition and therefore was not in custody. Thus, we deny Vasquez’s motion for reconsideration. Vasquez has failed to show that reasonable jurists could debate our timeliness and subject matter jurisdiction rulings. We therefore shall deny his request for a COA. 16

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