FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                      November 14, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
GERMAN CALDERON-RODRIGUEZ,

             Petitioner-Appellant,

v.                                                        No. 13-2107
                                               (D.C. No. 2:12-CV-00691-JB-ACT)
RAY TERRY, Warden of Otero County                           (D. N.M.)
Processing Center, in his official
capacity,

             Respondent-Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, TYMKOVICH, and PHILLIPS, Circuit Judges.


      German Calderon-Rodriguez, a native and citizen of Mexico, seeks a

certificate of appealability (COA) to appeal from the district court’s order dismissing

his habeas petition. We deny a COA and dismiss this appeal.

                                     BACKGROUND

      Calderon-Rodriguez was admitted to the United States as a lawful permanent

resident in 2003. By 2012, he had garnered state-court convictions for



*
       This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
“Assault - Family,” R. at 31, and aggravated assault with a deadly weapon. The

Department of Homeland Security (DHS) detained Calderon-Rodriguez and initiated

removal proceedings.

      In response, Calderon-Rodriguez filed in federal district court a pro se

“Petition under 28 U.S.C. § 2241 for a Writ of Habeas Corpus & 2254, or May Be

Construed as a Writ of Coram Nobis if Appropriate.” 

The petition listed

four grounds for relief: (1) deportation proceedings against him should be stayed

because pro se alien detainees lack sufficient time to attack a criminal conviction;

(2) “the state court judge [in the aggravated-assault case] denied him an indigent

appointed counsel . . . but only appointed an ad litem to assist him in finding a

private lawyer,” 

(3) his ad litem attorney, who was in fact later appointed as

defense counsel, provided ineffective assistance regarding the immigration

consequences of pleading no contest to aggravated assault; and (4) if DHS deports

him before he appeals his aggravated-assault conviction, his case would be moot.

The government answered and moved to dismiss. Calderon-Rodriguez then filed a

reply and two more habeas petitions, each adding new grounds for relief. He also

indicated that he was subject to a final order of removal and that he intended to

appeal to the Board of Immigration Appeals (BIA).

      The district court granted the government’s motion to dismiss. In doing so, it

found that the new grounds were untimely and had been asserted without the

government’s consent or without leave of court in violation of Fed. R. Civ. P.


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15(a)(1) & (2). As for the grounds in the original petition, the court found that they

failed because Calderon-Rodriguez was attempting to challenge his removal (grounds

one and four)—a challenge beyond the court’s jurisdiction, and he had failed to

exhaust his state remedies (grounds two and three).

                                      DISCUSSION

      Under the Antiterrorism and Effective Death Penalty Act, a COA is a

prerequisite to appealing the denial of habeas relief under either § 2241 or § 2254.

Montez v. McKinna, 

, 867 (10th Cir. 2000).1 To obtain a COA,

Calderon-Rodriguez must “show[ ] that reasonable jurists could debate whether

(or, for that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 

, 484 (2000) (brackets and internal

quotation marks omitted).

      In grounds one and four, Calderon-Rodriguez sought habeas relief to block his

removal. But under 8 U.S.C. § 1252(a)(5), “a petition for review filed with an


1
       A COA is not required for a coram nobis appeal. See United States v. Torres,

, 1247 n.9 (10th Cir. 2002); accord United States v. Kwan, 

, 1010 (9th Cir. 2005), abrogated on other grounds by Padilla v. Kentucky,

(2010); United States v. Baptiste, 

, 189 n.1 (3d Cir. 2000)
(per curiam). Nevertheless, Calderon-Rodriguez appears to seek coram nobis relief
from the Texas aggravated-assault conviction. “[F]ederal courts have no jurisdiction
to issue writs of coram nobis with respect to state criminal judgments.” Rawlins v.
Kansas, 

, 1196 (10th Cir. 2013) (internal quotation marks omitted).
Thus, the district court properly dismissed Calderon-Rodriguez’s petition insofar as it
sought coram nobis relief.


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appropriate court of appeals . . . shall be the sole and exclusive means for judicial

review of an order of removal.” A petition under “section 2241 of Title 28, or any

other habeas corpus provision” is not the proper vehicle to challenge an alien’s

removal. 

alien may use § 2241 to challenge his detention, Ochieng

v. Mukasey, 

, 1115 (10th Cir. 2008), Calderon-Rodriguez appears to be

contesting only his removal. And although a district court may transfer to this court

a habeas petition that contests removal, see Berrum-Garcia v. Comfort, 

, 1162-63 (10th Cir. 2004), Calderon-Rodriguez had apparently not exhausted

his administrative remedies by appealing to the BIA before the district court

dismissed his petition, see Soberanes v. Comfort, 

, 1308-09 (10th Cir.

2004) (“Neglecting to take an appeal to the BIA constitutes a failure to exhaust

administrative remedies as to any issue that could have been raised, negating the

jurisdiction necessary for subsequent judicial review.”). Thus, the district court’s

determination that it lacked jurisdiction over grounds one and four was correct.

      In grounds two and three, Calderon-Rodriguez complained that he had been

denied counsel in the aggravated-assault proceeding and then not told of the

immigration consequences of pleading no contest. A § 2254 petition is the proper

vehicle for asserting such complaints. See 

(explaining that

§ 2254 is the proper vehicle for a challenge to the validity of a conviction and

sentence whereas § 2241 is the proper vehicle for “an attack on the execution of [a]

sentence”).


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      “Generally speaking, we may not review a claim for federal habeas relief

unless the applicant has exhausted the remedies available in the courts of the State.”

DeRosa v. Workman, 

, 1208 (10th Cir. 2012) (internal quotation marks

omitted). In his petition, Calderon-Rodriguez admits that he did not exhaust the

available state-court remedies. And while a state may, through counsel, waive the

exhaustion requirement, see 

no indication that that has occurred here.

Consequently, grounds two and three are, as the district court determined, barred for

failure to exhaust.

      Calderon-Rodriguez does not address the district court’s reasons for

dismissing the original petition. Instead, he argues that the district court should have

construed his second and third petitions as “separate petition[s]” rather than as

attempts to amend the original petition. Aplt. Br. at 3. But the second and third

petitions targeted the same removal proceedings as the original petition. As the

district court noted, the second and third petitions were untimely, as they were filed

more than twenty-one days after the government’s combined answer and motion to

dismiss, see Fed. R. Civ. P. 15(a)(1), and Calderon-Rodriguez sought neither the

government’s consent for a late filing or leave of court, see Fed. R. Civ. P. 15(a)(2).




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                                    CONCLUSION

      Calderon-Rodriguez has failed to demonstrate that any of the district court’s

determinations were debatable or that the issues presented deserve further treatment.

Accordingly, we deny his application for a COA, and we dismiss this appeal.


                                               Entered for the Court



                                               ELISABETH A. SHUMAKER, Clerk




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