HILDA TAGLE, Senior District Judge.
Before the Court is the Magistrate Judge's Report and Recommendation in the above referenced cause of action filed October 28, 2014. Dkt. No. 22. After a de novo review of the file, the Magistrate Judge's Report and Recommendation is
The Court has reviewed Grant's self-styled Motion in an Affidavit Form Requesting this Honorable Court to Appoint Counsel, Dkt. No. 47. Grant makes no new allegations in this motion that would arguably entitle him to relief from the criminal judgment he attacks here. See id. Instead, construed liberally, Grant asks the Court to appoint counsel to assist him in pending removal proceedings. See id. at 3 (arguing that Grant faces persecution if he is removed to Jamaica). Because removal proceedings in immigration court are classified as civil, Grant has the right to "have counsel represent him [in those proceedings], but not to have one appointed for him at government expense." United States v. Medard, No. 3:06-CR-120-L, 2007 WL 507044, at *3 (N.D. Tex. Feb. 16, 2007) (citing 8 U.S.C. § 1362 and Paul v. United States Immigration and Naturalization Service, 521 F.2d 194, 197 (5
Further, the Court, on its own motion, denies Applicant a certificate of appealability. See Alexander v. Johnson, 211 F.3d 895, 898 (5
It is, therefore,
The Court is in receipt of Lecent Augustus Grant's amended "Application for Writ of Habeas Corpus Vacate/Alter Conviction and Sentencing" (hereinafter Grant's "Application"). Dkt. No. 8. Respondent, United States of America, has filed a Motion for Summary Judgment and Alternative Motion to Dismiss Grant's Application (hereinafter the "Government's Motion to Dismiss"). Dkt. No. 16. For the reasons provided below, the Court (1) denies Grant's Application; (2) denies the Government's Motion to Dismiss as moot; (3) denies all other relief requested by the parties; and (4) dismisses Grant's case.
Lecent Augustus Grant's pleadings in this civil action reveal that he is attempting to have his judgment of conviction in United States of America v. Lecent Agustus Grant
Grant first attempted to seek this relief on April 25, 2014, by filing a "Motion for Late Appeals" in his closed criminal action. CR Dkt. No. 60. The Court liberally construed Grant's Motion for Late Appeals and gave him the following "Castro warning" pursuant to the considerations detailed in Castro v. United States, 540 U.S. 375 (2003). CR Dkt. No. 61.
Id. at 1-2.
Grant responded to the Court's Castro Warning by filing an unsigned "Motion to Vacate/Alter Conviction and Sentencing" (hereinafter "Unsigned Motion"). CR Dkt. No. 66. He also sent several letters to the Court which reiterated the allegations made in his Unsigned Motion. CR Dkt. Nos. 64, 65, 67, 72. The District Clerk's Office opened the instant civil action and docketed Grant's Unsigned Motion as a motion brought pursuant to 28 U.S.C. § 2255. Dkt. No. 1.
On May 28, 2014, the Court issued a Notice and Order which notified Grant that his Unsigned Motion failed to state a claim. Dkt. No. 3 at 1. In relevant part, the Notice and Order also provided as follows.
Id. at 1-3. Grant responded to this Notice and Order by filing his instant signed Application. Dkt. No. 8. He also filed numerous other supporting documents, pleadings, and letters. See, e.g., Dkt. Nos. 6, 9-11, 18-19, 21.
On June 19, 2014, the Court issued an Order directing the Government to respond to Grant's Application. Dkt. No. 12. The Order noted that Grant's Application might be more properly construed as a petition for writ of error coram nobis and ordered the Government to respond to Grant's Application according to its substance, rather than its title. Id. at 1.
The Government responded by filing its instant Motion to Dismiss. Dkt. No. 16. The Motion to Dismiss does not mention the Court's instruction. Instead, it analyzes Grant's Application as a 28 U.S.C. § 2255 Motion and asserts, without demonstrating, that the Court has jurisdiction over Grant's Application pursuant to 28 U.S.C. § 1331 and § 2255. Id. at 2. Grant responded to the Government's Motion to Dismiss by filing a "Motion to Dismiss Respondent motion for summary judgment" (hereinafter Grant's "Response"). Dkt. No. 17 (errors in original). Grant's Response continues to claim an entitlement to relief pursuant to § 2255, and does not explicitly purport to seek a writ of error coram nobis.
The Court must determine how Grant's Application should be construed before it can determine its jurisdiction over the Application. As explained more fully below, if Grant's Application is construed as a motion brought pursuant to 28 U.S.C. § 2255, then the Court lacks jurisdiction to consider the Application. However, if his Application is construed as a petition for writ of error coram nobis, then this Court has jurisdiction and must consider the Application. Accordingly, the Court will first determine if Grant's Application should be construed as a § 2255 motion, or if it is, instead, more properly construed as a petition for writ of error coram nobis brought pursuant to 28 U.S.C. § 1651(a) (hereinafter the "All Writs Act").
In relevant part, subsection (a) of 28 U.S.C. § 2255 provides that a "prisoner in custody under sentence of a court established by Act of Congress . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). Pursuant to the "in custody" requirement contained in subsection (a), an individual seeking to challenge his federal conviction or sentence cannot do so under § 2255 unless he is still in a qualifying form of custody. In general, the custody requirement is satisfied if the individual is subject to a direct adverse restraint on his liberty, such as being subject to imprisonment or conditions of parole. See Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (discussing custody requirement as applicable to habeas corpus petition brought by state prisoner); Custis v. United States, 511 U.S. 485, 497 (1994) (finding that Maleng's analysis is applicable to movant seeking § 2255 relief). The custody requirement is not generally satisfied by individuals who are subject to adverse collateral restraints on their liberty, such as being barred from voting or holding public office. Maleng, 490 U.S. 488, 490-91.
Further, § 2255 movants must be in a qualifying form of custody pursuant to the conviction or sentence under attack at the time they file their § 2255 motion. Pack v. Yusuff; 218 F.3d 448, 454 n. 5 (5th Cir. 2000). If the prisoner is no longer in custody at the time he files his § 2255 motion, then his failure to satisfy § 2255(a)'s custody requirement will deprive the federal court receiving the § 2255 motion of jurisdiction to review the prisoner's § 2255 claims. Id.
Here, Grant is challenging the conviction and sentence issued by this Court. See Dkt. No. 8 and CR Dkt. No. 39. He first attempted to do so on April 25, 2014, by filing his Motion for Late Appeals. CR Dkt. No. 60. At that time he was no longer in custody pursuant to the judgment of conviction in his criminal case. See Dkt. No. 20 (containing verification from United States Probation Office that Grant "successfully completed his sentence and probation terms in 1:03CR636-2 on September 22, 2005"). However, when Grant filed his Motion for Late Appeals, he was in the custody of U.S. Immigration and Customs Enforcement (hereinafter "ICE") at its Houston Contract Detention Facility. See Dkt. No. 60 at 4. It appears he is still in ICE custody. See Dkt. No. 21 at 5.
The question presented, then, is whether Grant's detention at the ICE facility constitutes custody for purposes of satisfying § 2255(a)'s filing requirement. Earlier this year, the court in Diarrassouba v. United States discussed § 2255(a) in the context of ICE detention. The court noted that, "Whose federal courts that have faced the issue of whether deportation proceedings following a criminal conviction may constitute being `in custody' for purposes of bringing a habeas petition challenging the conviction have answered in the negative, even if the movant is being held in immigration detention pending deportation." Diarrassouba v. United States, Civil Action No. 12-2257 (MLC), 2014 WL 546341, at*3 (D.N.J., Feb. 10, 2014) (citations omitted). Consistent with these courts, the Fifth Circuit has held that deportation is a collateral, rather than direct, consequence of a defendant's criminal conviction. Therefore, being subject to deportation proceedings does not render a defendant in custody for purposes of filing a § 2255 motion. United States v. Esogbue, 357 F.3d 532, 534 (5th Cir. 2004) ("Adverse collateral consequences of a conviction do not render an individual `in custody.' Maleng, 490 U.S. at 492, 109 S.Ct. 1923. Deportation is such a collateral consequence. See United States v. Castro, 26 F.3d 557, 559 n. [4], 561 n. [6] (5th Cir. 1994)").
Other Circuit Courts of Appeal have reached the same conclusion. See, e.g., Ogunwomoju v. United States, 512 F.3d 69, 75 (2d Cir. 2008) (holding that being subject to deportation proceedings does not render a defendant "in custody"). Kandiel v. United States, 964 F.2d 794, 796 (8th Cir. 1992) ("Because Kandiel's sentence was fully expired by the time he filed his section 2255 motion and the current deportation proceedings against him are merely a collateral consequence of his conviction, he is not `in custody' for the purposes of section 2255.").
However, in a different context, the Supreme Court in Padilla v. Kentucky questioned the characterization of deportation as a collateral consequence of a conviction. 559 U.S. 356, 365-66 (2010).
Id. at 366.
The Supreme Court's unwillingness to categorize deportation as a collateral consequence in the context of determining an attorney's duty to warn of the possible risk of deportation has caused at least one court to "assume" that ICE custody is custody for § 2255(a) purposes. See Rodriguez v. United States, No. 1:10-CV-23718-WKW [WO], 2011 WL 3419614, at *6 (mem. & order) (S.D. Fla., Aug. 4, 2011). Discussing the above-quoted passage from Padilla, the Court in Rodriguez v. United States noted that the implication of the passage "is that the Court viewed deportation consequences as, at least, more of a direct consequence than a collateral one[.]" Id. at 5.
Id. at 6.
Still, other courts have indicated that this approach is questionable and not followed by the majority of courts to consider the issue. See, e.g., State v. Favela, 311 P.3d 1213, 1216 (N.M. Ct. App. 2013), cert. granted (2013).
Id.
In light of the positions taken by the majority of courts to consider this issue, and the factors considered by those courts, it would seem both premature and unwise to find that the ICE detention constitutes custody for § 2255(a) purposes. The weight of authority within this Circuit and elsewhere suggests that Grant was not in a qualifying form of custody when he filed his Motion for Late Appeals, and he has not been in qualifying custody subsequently.
Therefore, the Government's statement that the Court has jurisdiction over Grant's Application pursuant to 28 U.S.C. §§ 1331 and 2255 is incorrect, and its Motion to Dismiss pursuant to § 2255(f) is inapplicable. See Dkt. No. 16 at 2, 9. Construing Grant's Application as a § 2255 motion would require the Court to dismiss it for lack of jurisdiction. See Pack, 218 F.3d 448, 454 n. 5 ("Both §§ 2255 and 2241 require that at the time a prisoner files a motion or petition, he must be `in custody' for the conviction or sentence he wishes to challenge in order for the habeas court to have jurisdiction.").
Liberally construed, however, Grant's Application qualifies as a petition for writ of error coram nobis. A federal petition for writ of error coram nobis brought pursuant to the All Writs Act can provide "an avenue of collateral attack when the petitioner has completed his sentence and is no longer `in custody' for purposes of seeking relief under either 28 U.S.C. § 2241 or § 2255." United States v. Dyer, 136 F.3d 417, 422. If a petitioner files a petition for writ of error coram nobis to challenge a conviction or sentence when he is no longer in custody pursuant to that conviction or sentence, then the federal court receiving the petition will generally have jurisdiction to entertain the petition—provided that it is the court that issued the conviction or sentence challenged by the petition. Sinclair v. State of Louisiana, 679 F.2d 513, 515 (5th Cir. 1982); Marshall v. United States, No. 3-87-cr-086-L, 2010 WL 2540852, at *1 (N.D. Tex., June 4, 2010). Here, this Court has jurisdiction to consider Grant's Application because he is challenging the conviction and sentence issued by this Court. See CR Dkt. No. 39; Sinclair v. State of Louisiana, 679 F.2d 513, 515.
Section 1651(a) of Title 28 provides that the "Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). The writ of error coram nobis is an extraordinary remedy available only "in circumstances where the petitioner can demonstrate civil disabilities as a consequence of the criminal conviction, and that the challenged error is of sufficient magnitude to justify the extraordinary relief." Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir. 1996). A writ of error coram nobis is not meant to supplant other post-conviction avenues of relief. Thus, a writ of coram nobis will not issue unless no other remedy is available and the petitioner has sound reasons for failing to seek appropriate relief at an earlier time. Dyer, 136 F.3d 417, 422 (citing United States v. Morgan, 346 U.S. 502, 512 (1954)). The Supreme Court has made it clear that a writ of error coram nobis should rarely issue, stating that `it is difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis] would be necessary or appropriate.'" Carlisle v. United States, 517 U.S. 416, 429 (1996) (quoting United States v. Smith, 331 U.S. 469, 475 n. 4 (1947)).
To obtain a writ, then, the petitioner must demonstrate (1) that compelling circumstances require the issuing of the writ in order to achieve justice; (2) that sound reasons exist for the petitioner's failure to seek appropriate relief at an earlier time; and (3) that the petitioner continues to suffer legal consequences from his conviction that can be remedied by the issuing of the writ. Salas v. United States, Nos. EP-13-CV-237-PRM, EP-11-CR-476-PRM, 2013 WL 8476172, at *2 (W.D. Tex., Aug. 6, 2013) (citing Foont v. United States, 93 F.3d 76, 78-79 (2d Cir. 1996) for its summarization of a petitioner's burden pursuant to Supreme Court precedent). Additionally, the petitioner bears the significant burden of overcoming the presumption of correctness accorded to the previous judicial proceedings. Id. (citing Dyer, 136 F.3d at 422).
Grant's Application and supporting pleadings contend that ineffective assistance of counsel caused him to plead guilty to a misdemeanor possession of marijuana charge. He alleges that he was innocent of this charge and would not have pleaded guilty, but for the fact that his counsel, the judge, and the prosecutor all coerced him into pleading guilty. He states that he had nothing to do with the marijuana he pleaded guilty to possessing. He asserts that he was arrested for being in the wrong place at the wrong time because he arrived at a house during a drug bust, and was accused of possessing the marijuana seized by the police merely because he was present. See Dkt. Nos. 1, 6, 8-11, 17-19.
Grant states that neither the judge nor his attorney informed him of the immigration consequences of pleading guilty. In fact, he asserts that his attorney told him that pleading guilty would not affect his immigration status. He states that he pleaded guilty, in part, because his counsel told him that he would go to prison for a long time if he did not. He states his counsel also told him that he would have difficulty proving his innocence because he was from Jamaica and Jamaicans are known to deal marijuana. He claims that his counsel's collective actions deprived him of effective assistance of counsel, and the prosecutor was also guilty of misconduct. Additionally, he claims that his counsel told him that if he did plead guilty, then he would only receive a probated sentence and the conviction would eventually be removed from his permanent record. See Dkt. Nos. 1, 6, 8-11, 17-19.
Grant claims that he did not challenge his conviction at an earlier time because he was under the impression that his permanent record was clean. He states that he paid his attorney to appeal his conviction, but his attorney failed to file an appeal on his behalf. He indicates that his attorney had a duty to inform him of the immigration consequences of his plea, and that this Court should hold that this duty applies retroactively.
Dkt. No. 17 at 5-6 (errors in original). Grant also indicates that he did not collaterally challenge his conviction before now because "he was under heavy medication" and "was unaware of habeas corpus at the time." Id. at 7.
As noted above, Grant may not obtain a writ of error coram nobis unless he demonstrates (1) that compelling circumstances require the issuing of the writ in order to achieve justice; (2) that sound reasons exist for his failure to seek appropriate relief at an earlier time; and (3) that he continues to suffer legal consequences from his conviction that can be remedied by the issuing of the writ. Further, Grant bears the significant burden of overcoming the presumption of correctness accorded to his previous judicial proceedings. Salas v. United States, 2013 WL 8476172, at *2 (citing Dyer, 136 F.3d at 422 and Foont, 93 F.3d 76, 78-79).
Here, Grant has not provided the Court with facts or evidence indicating that he had sound reasons for failing to seek appropriate relief at an earlier time. Grant's judgment of conviction was entered on September 23, 2003. CR Dkt. No. 39. His records indicate that he did not attempt to challenge this conviction prior to April 25, 2014. See CR Dkt. No. 60. Grant suggests that he was "impaired from his medication" and could not "think straight," at some point after his conviction. Dkt. No. 17 at 6. This allegation is conclusory. By itself, it fails to justify Grant's failure to act sooner, given that he let more than ten years pass before he attempted to challenge his conviction. He does not allege sufficient facts from which it would be reasonable to infer that he was incapacitated.
Grant also claims that he did not challenge his conviction at an earlier time because his counsel had told him that his record would be wiped clean after he finished his probation. He states that he did not become aware of the need to challenge his conviction until he was detained by ICE and informed that he had to appear in court. However, Grant's statement about his counsel's advice is conclusory. There is also nothing in his Judgment or records which support his assertion. More importantly, ignorance of the law generally does not constitute a sound reason for failing to act sooner. See, e.g., Lee v. United States, No. 3:08-C2044-D, 2009 WL 3762112, at *1 (N.D. Tex., Nov. 10, 2009) (noting that petitioner's ignorance of the law did not justify failing to seek more appropriate relief at an earlier time when petitioner's conviction was ten years old).
Moreover, although Grant suggests that he did not become aware that his conviction was still listed in his record until he was detained by ICE, his pleadings and submissions fail to identify when his detention with ICE began. Grant may have been detained by ICE, or notified that his record was not clean, in time to seek other less extraordinary relief. Grant has not provided the Court with sound reasons for failing to seek less extraordinary relief at an earlier time.
On a related note, Grant has not provided the Court with enough facts to allow it to conclude that the current legal consequences of his conviction could potentially be remedied by the issuing of a writ. Grant claims to be innocent of the crime at issue, but he has failed to allege or demonstrate that he has maintained a clean criminal record after his 2003 conviction. If Grant has been convicted of other deportable offenses since 2003, then issuing a writ of error coram nobis here is unlikely to do him any good. Thus, Grant has failed to allege facts demonstrating that he continues to suffer legal consequences from his conviction that could be remedied by the issuing of the writ.
Grant has also failed to overcome the presumption of correctness accorded to his previous judicial proceedings. Although he alleges that he was actually innocent of possessing marijuana, his Judgment records that he pleaded guilty to "knowingly and intentionally" possessing the marijuana in question. CR Dkt. No. 39. Grant's criminal case records also reveal that he possessed and ingested marijuana after his conviction. See CR Dkt. No. 57 at 1 (containing the U.S. Probation Office's Notice of Noncompliance indicating that in November of 2004, Grant "possessed marihuana ... not prescribed by a physician, as evidenced by a urine specimen submitted by him" in violation of his probation terms). Of course, this is not evidence of Grant's guilt in 2003. But, his failure to comply with the agreed terms of his probation undermine the credibility of his innocence claims, absent some evidence that he was innocent of possessing the marijuana at issue in 2003. Grant has not produced any such evidence, nor has he provided the Court with facts sufficient to overcome the presumption of correctness afforded to his knowing, intentional plea of guilt.
Finally, Grant argues that his attorney had a duty to properly advise him of the immigration consequences of his guilty plea because, in Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court held that a failure to give such advice constitutes ineffective assistance of counsel. He contends that he would not have pleaded guilty if he had known that doing so could subject him to deportation, and he argues that the holding in Padilla should apply retroactively to allow him to vacate his sentence and obtain a trial before a jury. Dkt. No. 17 at 5-6. However, on February 20, 2013, the United States Supreme Court held that Padilla does not apply retroactively. Chaidez v. United States, ___ U.S. ___, 133 S.Ct. 1103, 1107-14 (2013). The Court unequivocally stated, "defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding." Id. at 1113. Thus, as Grant's conviction became final well before Padilla issued, and he has advanced no other viable basis for coram nobis relief, his Application is denied. See id. See also United States v. Amer, 681 F.3d 211, 214 (holding that Padilla does not apply retroactively to cases on collateral review).
In the alternative, if Grant's Application is construed as a motion brought pursuant to 28 U.S.C. § 2255, it would be dismissed for lack of jurisdiction because, as detailed above, Grant was not in custody pursuant to the judgment he is attacking when he filed his Motion for Late Appeals. Moreover, even if the Court had jurisdiction to entertain his Application as a § 2255 motion, the Application would be subject to dismissal as untimely for the reasons contained in the Government's Motion to Dismiss. See Dkt. No. 16. Construed as a § 2255 motion, Grant's Application is time-barred and he has failed to assert facts entitling him to proceed in spite of his untimeliness.
