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Cortez-Rodriguez v. State

United States District Court, District of Nevada

March 24, 2015

JOSE FRANCISCO CORTEZ-RODRIGUEZ, Petitioner,
v.
STATE OF NEVADA, et al., Respondents.

ORDER

Jennifer Dorsey, United States District Judge.

This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is represented by retained counsel. Before the court is respondents’ motion to dismiss the petition. (Doc. 6). The court finds that it lacks subject-matter jurisdiction under the habeas statute because petitioner was no longer in custody at the time the petition was filed and, regardless, the petition is fatally untimely. Accordingly, the court grants the motion to dismiss and denies petitioner a certificate of appealability.

I. Procedural History

On February 5, 1997, petitioner entered a guilty plea to two counts of the sale of a controlled substance. (Exhibits 8, 9).[1] The state district court sentenced petitioner to two consecutive sentences of 12-36 months and suspended the sentences by placing petitioner on probation for a term not to exceed three years. (Exhibits 10, 11). The judgment of conviction was filed April 24, 1997. (Exhibit 11). Petitioner did not appeal his conviction or sentence. On October 12, 1999, the state district court entered an order honorably discharging petitioner from probation. (Exhibit 13).

On May 24, 2005, petitioner filed a motion to withdraw his guilty plea. (Exhibit 16). On June 15, 2005, the state district court denied petitioner’s motion. (Exhibit 17).

On August 8, 2011, petitioner filed a post-conviction habeas petition in the state district court. (Exhibit 19). The state district court granted the petition, finding that petitioner entered his plea as a result of ineffective assistance of counsel, and concluded that NRS 176.165 permitted petitioner to withdraw his guilty plea. (Exhibit 31). By order filed November 15, 2012, the Nevada Supreme Court found that petitioner did not have standing to pursue a post-conviction habeas petition because he had completed his sentence and reversed the state district court’s decision. (Exhibit 48). Additionally, the Nevada Supreme Court found that, to the extent the petition could be construed as a motion to withdraw his guilty plea, it was barred by the equitable doctrine of latches. (Id.).

Petitioner, proceeding with retained counsel, filed the instant petition for federal habeas corpus relief in this court on November 13, 2013. (Doc. 1). This court directed respondents to file a response to the petition. (Doc. 2). On July 17, 2014, respondents filed a motion to dismiss the petition. (Doc. 6). Petitioner’s response to the motion to dismiss was filed on August 29, 2014. (Doc. 10). Respondents’ reply to the opposition was filed on November 7, 2014. (Doc. 12).

II. Discussion

A. Lack of Subject-matter Jurisdiction

Subject-matter jurisdiction for federal habeas corpus actions is limited to those persons “in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2254(a); Brock v. Weston, 31 F.3d 887, 889 (9th Cir. 1994). The in-custody requirement of § 2254 encompasses more than just physical confinement in prison. See Jones v. Cunningham, 371 U.S. 236, 239-40 (1963). It includes individuals on parole or probation. Jones, 371 U.S. at 240-43 (parole satisfies the in-custody requirement); Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005) (probation satisfies the in-custody requirement). However, a petitioner whose sentence has fully expired is precluded from challenging that sentence because he is no longer “in custody” for purposes of federal habeas review. Maleng v. Cook, 490 U.S. 488, 492 (1989).

This court lacks subject-matter jurisdiction over this petition because it was initiated after Cortez-Rodriguez’s sentence had fully expired. He was discharged from probation on October 12, 1999. (Exhibit 13). Petitioner was not “in custody” with respect to his state-court conviction when he initiated this action, preventing this court from acquiring subject-matter jurisdiction over this action.

In his opposition to the motion to dismiss, petitioner acknowledges that he was not in physical custody when he filed the petition, and he argues that his liberty is constrained because the 1997 conviction led to his 2011 order of deportation. (Doc. 10, at pp. 3-6). While collateral consequences of a criminal conviction may permit a court to continue exercising jurisdiction over a petition if the petitioner is released from custody after the petition is filed, collateral consequences alone are insufficient to satisfy the in-custody requirement in a federal habeas corpus proceeding. Maleng v. Cook, 490 U.S. at 492. The Ninth Circuit has held that immigration consequences of a state-court conviction constitute collateral consequences and do not satisfy the in-custody requirement for purposes of determining whether subject-matter jurisdiction is lacking. Resendiz v. Kovensky, 416 F.3d 952, 956-58 (9th Cir. 2005), abrogated on other grounds by Chaidez v. United States, 133 S.Ct. 1103 (2013). The Ninth Circuit reasoned that immigration consequences “arise from the action of an independent agency – indeed, in the case of a state conviction, an independent sovereign – and are consequences over which the state trial judge has no control whatsoever.” Resendiz, 416 F.3d at 957.

Petitioner relies on Padilla v. Kentucky, 130 S.Ct. 1473 (2010), for the proposition that his immigration consequences are sufficient to satisfy the in-custody requirement for federal habeas petitions. (Doc. 10, at pp. 3-6). In Padilla, the United States Supreme Court held that defense counsel performed deficiently by failing to advise the defendant that his guilty plea made him subject to automatic deportation. Padilla, 130 S.Ct. at 1481-82. In so holding, the Supreme Court expressed some reluctance to classify the possibility of deportation as a collateral, as opposed to a direct, consequence of a criminal conviction. Id. at 1482. The Supreme Court, however, did not resolve this question because it had “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland v. Washington, 466 U.S. 668, 689 (1984).” Padilla, 130 S.Ct. at 1481. Because the United States Supreme Court has not determined whether immigration consequences are direct or collateral consequences of a conviction, this court must follow existing Ninth Circuit law, which holds that immigration consequences are merely collateral consequences that do not alone satisfy the in-custody requirement of 28 U.S.C. § 2254. Resendiz, 416 F.3d at 957. Accordingly, this court lacks jurisdiction to entertain this federal habeas petition because Cortez-Rodriguez was no longer “in custody” when he filed it.

B. The Petition is Untimely Respondents also argue that Cortez-Rodriguez’s federal habeas action ...


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