Aguirre-Marin v. USA
Filing
2
MEMORANDUM OPINION dismissing Aguirre-Marin's 1 PETITION for Writ of Habeas Corpus Pursuant to 28 USC 2241. (Signed by Judge George P. Kazen) Parties notified. (dmorales, 5)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION
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UNITED STATES OF AMERICA
v.
MAGALI AGUIRRE-MARIN
Civ. No. L-13-210
MEMORANDUM OPINION
Pending before the Court is Magali Aguirre-Marin’s Petition
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, which
was filed by her counsel.
Aguirre-Marin
was
(Dkt. 1-1.)
sentenced
to
180
pleading guilty to illegal entry.
3.)
On August 27, 2013,
days’
confinement
after
(P.O. No. L-13-11855, Dkt.
The Bureau of Prison’s website indicates that she is still
in custody.
BOP Inmate Locator, http://www.bop.gov/Locate/.
Aguirre-Marin’s Petition does not challenge her conviction
or
sentence
in
the
2013
illegal
entry
case.
Instead,
she
challenges the legality of a 2010 conviction, where she pleaded
guilty to False Representation to be a U.S. Citizen.
1.)
She
alleges
that
her
counsel
in
the
2010
(Dkt. 1case
was
ineffective because he did not advise her about a potential
defense
plea.
or
about
the
immigration
(Dkt. 1-1 at pp. 6-8.)
consequences
of
her
guilty
In
the
2010
case,
Aguirre-Marine
was
sentenced
months’ imprisonment and one year of supervised release.
No. L-10-1786, Dkt. 24.)
to
six
(Crim.
This § 2241 petition was filed after
the full expiration of the 2010 sentence.
Therefore, habeas
corpus relief would normally be unavailable.
See Maleng v.
Cook, 109 S.Ct. 1923, 1925-26 (1989).
However, relief may be available if Aguirre-Marin alleges a
“positive and demonstrable nexus” between her current custody
and the challenged 2010 conviction.
Willis v. Collins, 989 F.2d
187, 189 (5th Cir. 1993) (per curiam) (quoting Young v. Lynaugh,
821 F.2d. 1133, 1137 (5th Cir. 1987)).
Such a nexus is shown,
for example, when a later sentence would have been lower “[b]ut
for”
a
prior
conviction.
Willis,
989
F.2d
at
189.
however, Aguirre-Marin does not allege such a nexus.
Here,
The prior
conviction did not lead to or enhance her 2013 illegal entry
conviction or sentence.
Indeed, the Complaint and Judgment in
the 2013 illegal entry case do not even refer to the prior
conviction.
(P.O. No. L-13-11855, Dkt. 1 and 3.)
Therefore,
Aguirre-Marin’s current custody does not have a sufficient nexus
to
the
2010
conviction,
and
she
cannot
challenge
the
2010
conviction under § 2241 because she is no longer “in custody”
for that conviction.
must
2 / 3
be
“in
custody”
See 28 U.S.C. § 2241(c)(1)-(4) (prisoner
for
writ
of
habeas
corpus
to
issue).
Accordingly,
Aguirre-Marin’s
Petition
(Dkt.
1-1)
shall
dismissed.
DONE at Laredo, Texas, this 4th day of February, 2014.
___________________________________
George P. Kazen
Senior United States District Judge
3 / 3
be
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