VASQUEZ v. RYAN et al
MEMORANDUM OPINION THAT 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, THEREFORE, HIS PETITION IS UNTIMELY. WE LACK SUBJECT MATTER JURISDICTION BECAUSE VAS SQUEZ HAD COMPLETED HIS SENTENCE WHEN HE FILED HIS HABEAS PETITION AND THEREFORE 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.. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 3/20/12. 3/22/12 ENTERED AND COPIES MAILED AND E-MAILED TO COUNSEL.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WILLIAM H. RYAN, JR., et al.
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.
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
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.
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.
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.
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
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)).
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
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.
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 §
In the alternative, Vasquez argues that he is entitled to equitable tolling of the
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).
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.
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
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.
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
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).
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
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.
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
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.
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
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
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.
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
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
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
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.
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.
Fenton was represented by the sam e attorney as Vasquez. The two cases were filed on the sam e
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.
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
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.
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