No. C-04-3657 MMC.
August 27, 2004
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND WRIT OF AUDITA QUERELA
Before the Court is petitioner Eduardo Garcia's ("Garcia") petition for a writ of habeas corpus, and petition for a writ of audita querela, in which he seeks an emergency stay of the removal proceedings initiated against him by United States Attorney General John Ashcroft and Thomas Ridge, Secretary, United States Department of Homeland Security, on the ground that his removal is based on a state court conviction for possession of a firearm which was obtained as a result of ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. Garcia contends that he would not have pleaded guilty to that offense had he been advised of the immigration consequences.
Garcia's petition for a writ of habeas corpus is hereby DISMISSED. See Contreras v. Schiltgen, 151 F.3d 906, 907, 908 (9th Cir. 1998) (holding, in nearly identical circumstances to those raised in the instant case, that a petitioner "cannot collaterally attack his state court conviction in a habeas proceeding against the INS").
Garcia's petition for a writ of audita querela is hereby DISMISSED. See Doe v. INS, 120 F.3d 200, 204 (9th Cir. 1997) (holding that "a writ of audita querela, if it survives at all, is available only if a defendant has a legal defense or discharge to the underlying judgment"); see also United States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003) (holding "counsel's failure to advise a defendant of collateral immigration consequences of the criminal process does not violate the Sixth Amendment right to effective assistance of counsel").
The Clerk shall close the file.
IT IS SO ORDERED.