06-3734-pr, 06-4424-ag Ogunwomoju v. United States

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term 2007 5 6 Docket Nos. 06-3734-pr, 06-4424-ag 7 8 Submitted: September 19, 2007 Decided: January 7, 2008) 9 10 __________________________________________________________ 11 12 ADENIYI OGUNWOMOJU, 13 14 Petitioner-Appellant, 15 16 v. 17 18 UNITED STATES OF AMERICA, 19 20 Respondent-Appellee. 21 22 __________________________________________________________ 23 24 ADENIYI OGUNWOMOJU, 25 26 Petitioner, 27 v. 28 29 PEOPLE OF THE STATE OF NEW YORK, 30 31 Respondent. 32 33 __________________________________________________________ 34 35 Before: MESKILL,1 MINER, and CABRANES, Circuit Judges. 36 37 In response to a motion by the Attorney General of the 38 United States to dismiss a petition purportedly seeking review of 39 an order of removal, we construe the petition as a petition for 40 habeas relief or, in the alternative, for a writ of error coram 41 nobis. We affirm the judgment of the United States District 42 Court for the Southern District of New York (Michael B. Mukasey, 43 Chief Judge) dismissing the petition. In doing so, we hold,

1 1 The Honorable Thomas J. Meskill, who was a member of this panel and 2 voted with the majority, passed away following submission of this case. The 3 appeal is being decided by the remaining two members of the panel, who are in 4 agreement. See 2d Cir. Interim R. 0.14(b).

1 1 inter alia, that a petitioner in immigration custody or under an 2 order of removal as a consequence of his criminal conviction is 3 not “in custody” within the meaning of

. 4 5 Ogunwomoju Adeniyi, pro se, 122-02 6 Mantauk Street, Springfield 7 Gardens, NY 11413. 8 9 10 Sue Chen, Special Assistant United 11 States Attorney (Michael J. Garcia, 12 United States Attorney for the 13 Southern District of New York; 14 David S. Jones, Assistant United 15 States Attorney, on the brief), New 16 York, New York. 17 18 MINER, Circuit Judge: 19 20 The question presented, one of first impression for this

21 Court, is whether a petitioner in immigration detention or under

22 an order of removal as a consequence of a state conviction is “in

23 custody” within the meaning of the statute providing for a writ

24 of habeas corpus to challenge such a conviction. We join our

25 sister circuits that have considered the issue in holding that

26 immigration detention is not “custody” for the purposes of

27 establishing jurisdiction to consider habeas petitions

28 challenging a state court conviction pursuant to

2254.

30 Adeniyi Ogunwomoju, (“petitioner” or “Ogunwomoju”) a

31 citizen of Nigeria, filed the petition which forms the basis of

32 the two captioned cases in March of 2006 while he was in

33 immigration detention. The petition was correctly designated as

34 a habeas petition pursuant to

by the United

35 States District Court for the Southern District of New York,

36 where the petition was filed. Pursuant to

(d), a 2 1 petition for a writ of habeas corpus challenging a conviction in

2 state court may be filed “in the district court for the district

3 within which the State Court was held which convicted and

4 sentenced him.” Because Ogunwomoju’s petition challenges his

5 conviction in the Criminal Court of the City of New York

6 (“Criminal Court”) of criminal possession of a controlled

7 substance, it was properly filed in the District Court for the

8 Southern District of New York (“District Court”). We construe

9 this petition and Ogunwomoju’s subsequent motion2 as a habeas

2 1 This petition, dated March 17, 2006, was received by the Pro Se 2 Office of the District Court on March 21, 2006, while Ogunwomoju was in 3 immigration detention in the York County Prison, York, Pennsylvania, a county 4 prison which also serves as an immigration detention facility. See Ogunwomoju 5 v. New York, 06-cv–4599 (S.D.N.Y. June 15, 2006). In May 2006, Ogunwomoju 6 sent a letter to the District Court noting that his address had changed to a 7 location in Springfield Gardens, New York, suggesting that he was no longer in 8 detention. Although the petition was not entered on the official docket until 9 June 15, 2006 — the date of Chief Judge Mukasey’s order dismissing 10 Ogunwomoju’s petition and entering judgment for respondents — for the purposes 11 of establishing petitioner’s custodial status at the time of filing, we find 12 that the petition was filed when it was received by the District Court on 13 March 21, 2006.

14 On June 6, 2006, Ogunwomoju filed a “Motion for Emergency Stay of 15 Deportation” (“Motion for Emergency Stay” or “Motion”) in the District Court. 16 Although the Motion sought relief in relation to Ogunwomoju’s habeas petition, 17 it gave rise to the opening of a new case on the docket of the District Court 18 under the second caption noted above. The Motion was designated on the docket 19 sheet as “Petition in the Nature of Mandamus.” In his Motion, Ogunwomoju 20 reiterated in detail the bases for his habeas claims and argued that his 21 removal to Nigeria should be stayed pending his appeal of the denial of his 22 habeas petition. Ogunwomoju asserted that irreparable harm would be inflicted 23 upon his wife and children if he were to be removed. Noting that his children 24 are U.S. citizens, Ogunwomoju stated that his family would suffer extreme 25 hardship in his absence since he is “a father figure and a provider for the 26 entire family.”

27 By an order signed on September 11, 2006, and entered on September 21, 28 2006, the District Court (Kimba M. Wood, Chief Judge) transferred to the Court 29 of Appeals the Motion, which is designated as an “application challenging 30 petitioner’s order of removal.” Ogunwomoju v. People of the State of New 31 York, No. 06-cv-6972 (S.D.N.Y. Sept. 11, 2006) (“Transfer Order”). Citing the 32 REAL ID Act of 2005,

,

(May 11, 2005), 33 the District Court transferred what it construed to be Ogunwomoju’s petition 34 challenging an order of removal to the Court of Appeals.

The District 35 Court’s Transfer Order directed the Clerk of the District Court to assign a 36 separate docket number for this case, resulting in the addition of a second 37 caption as the title of a separate proceeding. The Transfer Order also

3 1 petition rather than as a petition for review of an order of

2 removal. A timely appeal from the June 15, 2006 judgment of the

3 District Court (Michael B. Mukasey, Chief Judge)3 dismissing that

4 petition confers upon us jurisdiction to review that judgment.

5

.

6 I.

7 Ogunwomoju filed this petition after removal proceedings

8 were held as a direct consequence of his several criminal

9 convictions. From March 11, 2004 through July 20, 2004, the 10 United States Department of Homeland Security (“DHS”) filed

11 multiple charges of removability against Ogunwomoju pursuant to 8

(a)(2)(A)(ii), for having been convicted of crimes

1 directed “that petitioner’s removal or deportation be stayed pending further 2 order of the United States Court of Appeals for the Second Circuit.”

3 Finally, the Transfer Order directed the Clerk of the District Court “to close 4 the matter under [the newly assigned] docket number.”

In the interest of 5 judicial economy, we consolidate the captioned appeals.

6 It appears that Ogunwomoju failed to move for in forma pauperis status 7 on appeal, see

(a), or for a certificate of appealability, see 8

(c), to pursue the appeal. In the interest of justice and in 9 the interest of resolving all issues before us at the same time, we consider 10 the brief on appeal filed by Ogunwomoju as a motion to proceed in forma 11 pauperis and also as a motion for a Certificate of Appealability. Ogunwomoju 12 has not filed a financial affidavit in connection with his appeal, but the 13 District Court first found that he was indigent and thereafter revoked his in 14 forma pauperis status only because it appeared to the District Court that any 15 appeal from the order denying habeas relief would not be taken in good faith. 16 We have no reason to believe that Ogunwomoju’s indigency is not continuing, 17 and we grant him in forma pauperis status to pursue this appeal.

18 We grant the Certificate of Appealability in order to resolve an 19 important issue presented by the habeas petition — whether one who is in 20 immigrtion detention or subject to an order of removal as a consequence of a 21 state court conviction is entitled to seek habeas relief from the state 22 conviction after the sentence has been served.

3 1 We review a motion by Attorney General Michael B. Mukasey of a 2 judgment entered by Judge Mukasey when he was Chief Judge of the United States 3 District Court for the Southern District of New York. This curiosity is 4 without legal significance since the Attorney General appears before us solely 5 in his official capacity and as the incumbent Attorney General representing 6 the United States in a matter filed by a previous Attorney General.

4 1 of moral turpitude;4

(a)(2)(A)(iii), for having

2 been convicted of an aggravated felony;5 and

1227(a)(2)(B)(i), for having been convicted of criminal

4 possession of a controlled substance.6

5 Ogunwomoju’s removal proceedings were heard in York,

6 Pennsylvania by an Immigration Judge who denied Ogunwomoju’s

7 application for asylum, withholding of removal, and protection

8 under the Convention Against Torture and ordered Ogunwomoju’s

9 removal to Nigeria. In re Ogunwomoju, No. A 41 542 092 (I.J. 10 York, PA Sept. 8, 2004). The BIA affirmed the decision of the

11 Immigration Judge without opinion on February 14, 2005. In re

12 Ogunwomoju, No. A 41 542 092 (B.I.A. Feb. 14, 2005). On August

13 3, 2005, in response to Ogunwomoju’s motion to reopen and

14 reconsider its order of removal, the BIA remanded the case to the

15 Immigration Judge to allow Ogunwomoju to pursue an application

16 for relief under Section 212(c) of the Immigration and

17 Naturalization Act,

(c). In re Ogunwomoju, No. A

18 41 542 092 (B.I.A. Aug. 3, 2005). Section 212(c), which was

4 1 Ogunwomoju was convicted of petit larceny in the District Court of 2 Nassau County, New York, on January 24, 1994, and in the Criminal Court of the 3 City of New York, on August 16, 1994.

5 1 On November 13, 1990, petitioner was convicted in the United States 2 District Court for the Southern District of New York of conspiracy to commit 3 credit card fraud where the loss to the victim exceeded $10,000. He was also 4 convicted on November 5, 1993 in the United States District Court for the 5 Eastern District of New York of mail fraud by filing fraudulent income tax 6 returns.

6 1 On March 7, 2000, Ogunwomoju was convicted in the Criminal Court of 2 the City of New York following a guilty plea of criminal possession of a 3 controlled substance in the seventh degree pursuant to Section 220.03 of the 4 New York Penal Law. It is this conviction that is the subject of the instant 5 habeas petition.

5 1 repealed in 1996 pursuant to the Illegal Immigration Reform and

2 Responsibility Act of 1996 (“IIRIRA”),

Div.

3 C. Title III-A, 110 Stat. § 304(b), 3009-546, 3009-597, conferred

4 broad jurisdiction upon the Attorney General to waive deportation

5 under certain conditions for aliens “convicted of offenses

6 involving moral turpitude or the illicit traffic in narcotics”

7 who had entered guilty pleas prior to its repeal. I.N.S. v. St.

8 Cyr,

(2001).

9 On October 11, 2005, the Immigration Judge on remand 10 determined that Ogunwomoju was ineligible for such relief because

11 his drug conviction in the Criminal Court occurred after the

12 repeal of Section 212(c) and because the New York courts had not

13 yet ruled on Ogunwomoju’s post-conviction challenge to that

14 conviction. In re Ogunwomoju, No. A 41 542 092 (I.J. York, PA

15 Oct. 11, 2005). Ogunwomoju apparently believes that were it not

16 for his 2000 drug conviction in the Criminal Court, he would be

17 eligible for Section 212(c) relief because his other convictions

18 predated the 1996 repeal of Section 212(c) and because the 19 Immigration Judge referred only to the drug conviction as an

20 impediment to Ogunwomoju’s eligibility for Section 212(c) relief.

21

22 Reviewing the Immigration Judge’s decision following remand,

23 the BIA on December 27, 2005 concluded that it erroneously had

24 granted Ogunwomoju’s motion to reopen, vacated its decision of

25 August 3, 2005, and denied nunc pro tunc the motion to reopen.

26 In re Ogunwomoju, No. A 41 542 092 (B.I.A. Dec. 27, 2005). The

6 1 BIA denied petitioner’s subsequent motion to reopen on February

2 17, 2006. In re Ogunwomoju, No. A 41 542 092 (B.I.A. Feb. 17,

3 2006). Ogunwomoju sought review of the December 27, 2005 BIA

4 decision in the United States Court of Appeals for the Third

5 Circuit, which on December 7, 2006 dismissed as time-barred

6 Ogunwomoju’s petition to consider the original denial of asylum,

7 withholding of removal, and CAT relief and denied his petition to

8 review the BIA’s denial of his motion to reopen. See Ogunwomoju

9 v. Att’y Gen. of the U.S.,

(3d Cir. 2006).7 10

11 As a result of the judgment of the Court of Appeals for the

12 Third Circuit, Ogunwomoju’s immigration claims have been

13 thoroughly litigated and they have been conclusively decided

14 against him.

15 II.

16 While in immigration detention seeking relief from the

17 immigration decisions through the BIA and Court of Appeals for

18 the Third Circuit, Ogunwomoju also sought, without success, post- 19 conviction relief from his March 7, 2000 drug conviction in the

20 Criminal Court. After exhausting his options in the New York

21 state courts, he filed a habeas petition in the District Court in

22 March 2006, challenging the conviction entered in the Criminal

23 Court.

24 In challenging his conviction for criminal possession of a

7 1 Ogunwomoju did not appeal the BIA’s February 17, 2006 denial of his 2 motion to reopen. See Ogunwomoju v. Att’y Gen. of the U.S.,

, 3 247 n.1 (3d Cir. 2006)

7 1 controlled substance in the seventh degree, which entailed a

2 sentence of time served and a six-month suspension of his

3 driver’s license, Ogunwomoju advanced the following arguments in

4 his habeas petition: (1) that his plea of guilty was “unlawfully

5 induced or not made voluntarily with understanding of the nature

6 of the charge and the consequences of the plea”; (2) that trial

7 counsel was ineffective for “waiv[ing] a formal plea allocution”

8 and for failing to “advise him of the effect his plea would have

9 on his immigration status;” and (3) that the evidence seized from 10 him was taken in violation of the Fourth Amendment, since at the

11 time of his arrest “he was merely sitting in a parked automobile

12 and was not engaging in any suspicious activity.”

13 On June 15, 2006, Chief Judge Mukasey, inter alia, dismissed

14 the habeas petition, finding no basis for the relief sought under

15

. Specifically, Chief Judge Mukasey found that

16 Ogunwomoju was in immigration custody and not in custody pursuant

17 to the challenged criminal conviction. The sentence for the drug

18 conviction had been fully served by the time Ogunwomoju filed his 19 habeas petition. The Court therefore determined that it lacked

20 jurisdiction to consider his habeas petition. Ogunwomoju v. New

-cv-4599, *2 (S.D.N.Y. June 15, 2006). The Court also

22 considered and rejected coram nobis relief as an alternative

23 remedy.

. Finding that Ogunwomoju had not made a

24 substantial showing of the denial of a constitutional right, the

25 District Court declined to issue a certificate of appealability

26 in accordance with

.

. Finally, the

8 1 District Court certified, pursuant to

(a)(3),

2 that any appeal from the court’s order would not be taken in good

3 faith and, accordingly, revoked Ogunwomoju’s in forma pauperis

4 status. A Notice of Appeal was timely filed on July 6, 2006.

5 III.

6 In order for a District Court to entertain a petition for

7 habeas relief, the application for relief must be made “in behalf

8 of a person in custody pursuant to the judgment of a State court

9 only on the ground that he is in custody in violation of the 10 Constitution or laws or treaties of the United States.” 28

(a) (emphasis supplied). A petitioner must be “in

12 custody” in order to invoke habeas jurisdiction of the federal

13 courts. Custody

14 is required not only by the repeated references in the 15 statute but also by the history of the great writ. Its 16 province, shaped to guarantee the most fundamental of 17 all rights, is to provide an effective and speedy 18 instrument by which judicial inquiry may be had into 19 the legality of the detention of a person. 20 21 Carafas v. LaVallee,

(1968) (internal citations

22 omitted). In Carafas, the petitioner was incarcerated under the 23 state sentence he sought to attack when he filed his petition for

24 habeas relief.

at 235–36. He was unconditionally discharged

25 from custody while his appeal was pending, and the state then

26 claimed that his discharge rendered further proceedings moot.

27

. The Supreme Court rejected that argument, noting,

28 inter alia, that “collateral consequences” of conviction, such as

29 disqualification from engaging in certain businesses, from

30 serving as a labor union officer, and from voting and serving as 9 1 a juror, survive the expiration of a sentence.

at 237–38.

2 It is on the basis of that decision that petitioner argues in the

3 instant case that his immigration detention, resulting from an

4 order of removal issued in consequence of his drug conviction,

5 qualifies him as “in custody” pursuant to the judgment of the

6 state court for the purpose of establishing our jurisdiction to

7 consider his habeas petition under

.

8 However, in a later explication of its holding in Carafas,

9 the Supreme Court made it clear that it had 10 rested that holding not on the collateral consequences 11 of the conviction, but on the fact that the petitioner 12 had been in physical custody under the challenged 13 conviction at the time the petition was filed. The 14 negative implication of this holding is, of course, 15 that once the sentence imposed for a conviction has 16 completely expired, the collateral consequences of that 17 conviction are not themselves sufficient to render an 18 individual “in custody” for the purposes of a habeas 19 attack upon it. 20 21 Maleng v. Cook,

(1989) (emphasis in original).

22 In Maleng, the Court determined that a state detainer placed with

23 the federal authorities to assure that a petitioner would begin

24 to serve his state sentence at the conclusion of his federal 25 sentence satisfied the requirement that a petitioner be “in

26 custody” for the purpose of a habeas attack on the state

27 conviction.

.

28 Although Ogunwomoju was in immigration detention at the time

29 he filed the habeas petition in the District Court to challenge

10 1 his New York conviction,8 he was not in custody pursuant to a

2 judgment of a state court. His state court sentence, consisting

3 of “time served” incarceration and a six-month license

4 suspension, had been fully served in the year 2000, nearly six

5 years before he filed his habeas petition. Ogunwomoju filed his

6 habeas petition in March of 2006 from the place of his

7 immigration detention, where he was in custody pending further

8 action in his removal proceeding.

9 We held before the enactment of the REAL ID Act,

231, “that where a petitioner who is currently serving a state

11 sentence seeks to challenge a final order of removal, that order

12 is ‘sufficient, by itself, to establish the requisite custody’

13 for habeas purposes” under

Duamutef v. I.N.S.,

14

(2d Cir. 2004). However, we have not

8 1 Ogunwomoju is not in immigration detention at this time, although he 2 was at the time he filed his habeas petition. However, he is still subject to 3 the order of removal and is therefore still in immigration custody. See 4 Simmonds v. I.N.S.,

(2d Cir. 2003) (“[W]e have held that an 5 alien who has been released on bail from INS detention but is subject to a 6 final order of removal is in INS custody.”).

9 1 Prior to the May 13, 2005 enactment of the REAL ID Act,

231, persons held in immigration detention or subject to an order of removal 3 could challenge their detention through a petition for a writ of habeas corpus 4 in district court pursuant to

. See, e.g.,Richards v. Ashcroft, 5

(2d Cir. 2005).

6 Since passage of the REAL ID Act, district courts no longer have 7 jurisdiction to consider habeas petitions challenging immigration petitions, 8 see

(a)(5), and all habeas petitions challenging immigration 9 detention that were pending before passage of the REAL ID Act are construed as 10 petitions for review of orders of removal, see Gittens v. Menifee,

(2d Cir. 2005). New petitions for review must be filed with the 12 appropriate circuit of the United States Court of Appeals within 30 days of 13 the BIA’s entry of the final order of removal.

(a)(5), (b)(1). 14 Thus Ogunwomoju’s petition for review was properly considered by the Third 15 Circuit, and we are without jurisdiction to consider any subsequent petition 16 for review challenging the order of removal issued by the Immigration Judge in 17 Pennsylvania.

11 1 previously considered the converse — whether a petitioner in

2 immigration detention or under an order of removal as the result

3 of a criminal conviction is “in custody” for the purpose of a §

4 2254 challenge to that criminal conviction. We do so now, and

5 join our sister circuits that have determined that one held in

6 immigration detention is not “in custody” for the purpose of

7 challenging a state conviction under § 2254. See Resendiz v.

8 Kovensky,

, 956–58 (9th Cir. 2005); Broomes v.

9 Ashcroft,

(10th Cir. 2004); cf. United States 10 v. Esogbue,

(5th Cir. 2004)(holding that

11 immigration detention is not “custody” for the purposes of a

12 habeas petition challenging a federal conviction under 28 U.S.C.

13 § 2255); Kandiel v. United States,

(8th Cir.

14 1992) (same).

15 Removal proceedings are at best a collateral consequence of

16 conviction, and we must bear in mind “that once the sentence

17 imposed for a conviction has completely expired, the collateral

18 consequences of that conviction are not themselves sufficient to 19 render an individual ‘in custody’ for the purpose of a habeas

20 attack upon it.” Maleng,

. That is precisely the

21 situation in which Ogunwomoju now finds himself. And because the

22 “in custody” language of § 2254(a) is jurisdictional and requires

23 that habeas petitioners be in custody under a state conviction or

24 sentence when they file for habeas relief, the judgment of the

25 District Court dismissing Ogunwomoju’s habeas petition for want

26 of jurisdiction must be affirmed.

12 1 IV.

2 The District Court construed Ogunwomoju’s habeas petition in

3 the alternative as a petition for a writ of error coram nobis and

4 denied alternative relief. We have held that federal courts lack

5 jurisdiction to grant such writs with respect to state court

6 judgments. See Finkelstein v. Spitzer,

, 133–34 (2d

7 Cir. 2006). The writ traditionally has been utilized by courts

8 to correct errors within their own jurisdiction.

The All

9 Writs Act,

(a), empowers the federal courts to 10 issue writs of error coram nobis but only such as are “necessary

11 or appropriate in aid of their jurisdictions and agreeable to the

12 uses and principles of law.” We have noted with approval that

13 the “Sister Circuits that have addressed this question have ruled

14 that the district courts lack jurisdiction to issue writs of

15 error coram nobis to set aside judgments of State Courts.”

16 Finkelstein,

. Accordingly, the District Court

17 properly denied coram nobis as alternative relief. 18 Conclusion

We affirm the June 15, 2006 judgment of the United States

District Court for the Southern District of New York dismissing

for want of jurisdiction Ogunwomoju’s petition for the writ of

habeas corpus or, in the alternative, for the writ of coram

nobis. To the extent that Ogunwomoju’s petitions can be construed

as a petition for review of the BIA’s order of removal (a matter

fully litigated to conclusion in the Third Circuit), we grant the

Attorney General’s motion to dismiss Ogunwomoju’s petition for

13 want of jurisdiction, and we vacate the September 11, 2006 Order

of the District Court entering a stay of removal.

14