Opinion
3:20-cv-00747-SB
07-28-2021
DENGE LEMO GAHANO, Petitioner, v. CHRISTINE POPOFF, Respondent.
FINDINGS AND RECOMMENDATION
BECKERMAN, U.S. MAGISTRATE JUDGE.
Petitioner Denge Lemo Gahano (“Gahano”), an individual in custody at Tacoma Northwest Detention Center (“TNDC”) in Tacoma, Washington, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. The Court concludes that it lacks subject matter jurisdiction over this action because Gahano was not “in custody” at the time of filing. Accordingly, the district judge should summarily dismiss Gahano's Petition for Writ of Habeas Corpus (ECF No. 1).
BACKGROUND
In 2011, Gahano was charged in Multnomah County, Oregon with twelve counts of various firearms and domestic violence offenses. (Pet'r's Exs. (ECF No. 22), Ex. 1.) Gahano proceeded to trial, and a jury found him guilty on all but two counts. (Pet'r's Ex. 2.) The trial court sentenced Gahano to a custodial term totaling seventy-nine months, with post-prison supervision to follow. (Id.)
Gahano appealed, and later filed a petition for post-conviction relief. (Pet'r's Ex. 3.) On March 31, 2017, while his post-conviction case still was pending, Gahano's custodial term expired. (Pet'r's Exs. 3, 4.) He began serving his two-year term of post-prison supervision the same day. (Pet'r's Ex. 4.)
Although his state custodial sentence had expired, Gahano was not released from physical custody. Rather, he was transferred from the Oregon State Penitentiary to TNDC pursuant to an Immigration and Customs Enforcement detainer. (Pet'r's Ex. 5.) Gahano presently remains in custody at TNDC, but his term of state post-prison supervision expired on March 30, 2019. (Pet'r's Exs. 5, 6.)
On April 30, 2020, Gahano filed a Petition for Writ of Habeas Corpus in this Court, challenging his Oregon convictions. (ECF No. 1.) On June 24, 2020, the Court ordered Gahano to show cause why the Court should not summarily dismiss his petition for lack of subject matter jurisdiction. (ECF No. 22.) Gahano filed a response on May 14, 2021. (ECF No. 22.)
The cited filing date reflects the date on which Gahano signed the petition. The Court received and docketed the petition on May 6, 2020.
DISCUSSION
A court may entertain a petition for writ of habeas corpus on “behalf of a person in custody pursuant to a judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a) (“Section 2254(a)”); see also Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394, 401 (2001) (explaining that “[t]he first showing a § 2254 petitioner must make is that he is in custody pursuant to the judgment of a State court”). “This ‘in custody' requirement has been interpreted to mean that federal courts lack jurisdiction over habeas corpus petitions unless the petitioner is ‘under the conviction or sentence under attack at the time his petition is filed.'” Resendiz v. Kovensky, 416 F.3d 952, 956 (9th Cir. 2005), abrogated on other grounds by Chaidez v. United States, 568 U.S. 342 (2013)(quoting Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam)).
A habeas petitioner's physical confinement generally satisfies the “in custody” requirement, but such confinement is insufficient if it stems from unrelated charges or if it is the result of a conviction separate from that being challenged. See Woodall v. Beauchamp, 450 Fed.Appx. 655, 657 (9th Cir. 2011) (holding that an appellant in custody on charges unrelated to those being challenged was not “in custody” for the purpose of establishing jurisdiction under Section 2254(a)). “It is well-established that ‘once the sentence imposed for a conviction has completely expired, the collateral consequences of the conviction are not themselves sufficient to render an individual ‘in custody' for the purposes of a habeas attack upon it.'” Resendiz, 416 F.3d at 956(quoting Maleng, 490 U.S. at 492) (emphasis omitted).
Gahano acknowledges that he was released from custody under his Oregon convictions in 2019. He argues, however, that his current immigration-related detention is a “direct, not collateral, consequence of his criminal convictions in Oregon[, ]” and thus he is “in custody” for purpose of establishing jurisdiction under Section 2254(a). (Resp. to Or. to Show Cause (“Resp.”) (ECF No. 22), at 3.) The Court disagrees.
In Resendiz, the Ninth Circuit expressly considered whether immigration consequences flowing from a state criminal conviction render an individual “in custody pursuant to the judgment of a State court” for the purposes of Section 2254(a). Resendiz, 416 F.3d at 956. Observing that the immigration consequences of a state conviction “arise from the action of an independent agency . . . and are consequences over which the state trial judge has no control whatsoever, ” the Ninth Circuit held that such consequences “have long been viewed as ‘collateral,' and thus are not themselves sufficient” to satisfy the “in custody” requirement. Id. at 956-57.
Gahano asserts that Resendiz is no longer good law because it is “clearly irreconcilable” with the Supreme Court's subsequent decision in Padilla v. Kentucky, 559 U.S. 356 (2010), which held that a criminal defense attorney's failure accurately to advise a client of the immigration consequences of a conviction constitutes ineffective representation under the Sixth Amendment. (Resp. at 3.) The Supreme Court, however, did not determine in Padilla whether immigration consequences are a direct, rather than collateral, consequence of a conviction. See Padilla, 559 U.S. at 365 (declining to determine the nature of immigration consequences because it has “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., at 688, 689 (1984)”). Thus, even if Padilla recognized that “immigration issues are part and parcel of a criminal case for defendants who are not United States citizens” as Gahano suggests, it did not abrogate Resendiz's holding that the immigration consequences of a conviction are collateral in nature and insufficient to establish jurisdiction under Section 2254(a). See Cortez-Rodriguez v. Nevada, No. 2:13-cv-02094-JAD-PAL, 2015 WL 1308511, at *2 (D. Nev. Mar. 24, 2015)(rejecting the petitioner's reliance on Padilla because the Supreme Court “has not determined whether immigration consequences are direct or collateral consequences of conviction, [and therefore] 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”). Gahano therefore fails to demonstrate that he was “in custody” at the time of filing, and the Court lacks jurisdiction to entertain his petition.
CONCLUSION
For the reasons stated, the district judge should DISMISS the Petition for Writ of Habeas Corpus (ECF No. 1) with prejudice, and decline to issue a Certificate of Appealability because Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
The Court will refer its Findings and Recommendations to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
IT IS SO ORDERED.