The opinion of the court was delivered by: M. James Lorenz, United States District Court Judge
ORDER DENYING PETITION FOR HABEAS CORPUS AND VACATING ORDER FOR STAY OF REMOVAL
Petitioner Dimitri Vallerveich Tatarinov, represented by counsel, filed a Consolidated Petition seeking habeas corpus relief under 28 U.S.C. § 2241 ("Petition"). Petitioner is in custody of the Department of Homeland Security, Immigration and Customs Enforcement ("ICE") Detention and Removal Center in this District pending his removal to Russia. He filed a motion for stay pending removal. Respondents Superior Court of the State of California, County of San Diego ("State") and Office of the Chief Counsel, Dept. of Homeland Security; U.S. Attorney, Southern District; and ICE Detention and Removal Unit (collectively "Federal Respondents") opposed the motion. The motion for stay pending removal was granted on May 9, 2008.
The parties have fully briefed the Petition and filed supplemental briefing pursuant to the order filed May 22, 2008. The State filed a motion to dismiss, which Petitioner opposed. On June 1, 2008, Petitioner filed a motion for release pending the conclusion of this proceeding, which is opposed by all Respondents.
Petitioner challenges two expired state court sentences on which the removal order is based. He is no longer in custody for purposes of the convictions he is challenging. In addition, no exceptions to the rule precluding collateral challenges to state court convictions in immigration proceedings apply in this case. Therefore, despite the unfortunate circumstances which led to Petitioner's current situation, the Petition is DENIED. The State's motion to dismiss and Petitioner's motion for release are DENIED as moot. The May 9, 2008 order staying removal is VACATED.
The underlying facts, contained in the Petition, Petitioner's motion to stay, Petitioner's Excerpt of Record ("ER"), Declaration of Samuel W. Bettwy filed in opposition to the Petition ("Bettwy Decl."), and the State's Notice of Lodgment ("Lodgment"), are not disputed. Petitioner, a native of Russia and citizen of the former Soviet Union, came to the United States as a non-immigrant student in May 1992. The same year, he applied for asylum based on the threats he had received in the former Soviet Union. He married a United States citizen in 1994. In 1995, he was granted Conditional Permanent Resident Status based on marriage. In 1996, he filed a petition to remove this status; however, the petition was not adjudicated until June 9, 2000. (Bettwy Decl. Ex. at 54.)
In August 1995, Petitioner was convicted of misdemeanor petty theft and was sentenced to one year probation. In August 1996, Petitioner was caught taking a jacket from a department store. Because of allegations of use of force against a store security guard, Petitioner was charged with robbery. At trial, he was represented by Vladimir Verhovskoy. Petitioner and his subsequent counsel, Jerome Wallingford, believe Petitioner had a valid defense to the charge of robbery, however, due to Mr. Verhovskoy's negligence, the jury was not instructed on the defense. (Mtn. to Stay Ex. C.) In Mr. Wallingford's opinion, the case was a shoplifting incident and should have been resolved as a misdemeanor. However, Petitioner was found guilty of robbery ("1996 Conviction"). (Id.) He was sentenced to 270 days in custody. The custodial sentence was suspended and Petitioner was granted three years of probation.
Represented by Mr. Verhovskoy, Petitioner timely appealed the 1996 Conviction. However, Mr. Verhovskoy failed to file the appellant's opening brief and the appeal was dismissed on April 28, 1997. When Petitioner inquired about the status of the appeal, Mr. Verhovskoy did not tell him that the appeal was dismissed, but gave vague and misleading explanations why a decision had not yet been issued. (ER at 130.)
On April 13, 1998, Petitioner was apprehended by the Immigration and Naturalization Service ("INS")*fn1 and placed in removal proceedings. (Bettwy Decl. Ex. at 1, 3-6, 10.) Pending processing of Petitioner's request for a hearing to determine whether he could remain in the United States, Petitioner was released from INS custody on bond.
On October 19, 1998, on Mr. Verhovskoy's advice, Petitioner pled guilty to petty theft -- another shoplifting charge. Based on the prior robbery conviction, he was convicted of a felony ("1998 Conviction"). He was sentenced to 364 days in custody, but the sentence was suspended and Petitioner was placed on probation. This offense was added to the charges and factual allegations in Petitioner's removal proceedings. (See Bettwy Decl. Ex. at 11, 13.) Petitioner successfully completed probation and has no further criminal record.*fn2
Due to counsel's failure to inform Petitioner that the appeal of the 1996 Conviction was dismissed, Petitioner did not learn of this fact until the summer of 1998, when his wife inquired directly with the court. (ER at 130.) After being confronted in September 1999, Mr. Verhovskoy filed a motion to set aside the dismissal and reopen the appeal as well as a habeas corpus petition.
On September 9, 1999, Petitioner filed a habeas corpus petition in this District (case no. 99cv1911-IEG(LSP)) pursuant to 28 U.S.C. § 2241, challenging the constitutionality of the use of his underlying criminal judgments as the basis for removal. The petition was dismissed without prejudice as premature. (See order filed Jan. 19, 2000 in case no. 99cv1911.) The court held it was premature to consider Petitioner's constitutional challenge before the INS had a chance to finally rule on whether he was removable based on the prior convictions.
In the meantime, in state court proceedings, Mr. Verhovskoy filed a motion to reopen the appeal of the 1996 Conviction. The motion included only a vague explanation for failure to file the opening brief ("financial and medical catastrophes") and did not explain the two-year delay between the dismissal and motion to reopen. (ER at 14-22.) It was denied on September 24, 1999. (ER at 24.) Mr. Verhovskoy advised Petitioner that nothing could be done to revive the appeal. He advised filing a motion in the Superior Court to expunge the conviction. On April 13, 2000, Petitioner's motion to set aside the 1996 Conviction was denied. (ER at 26.) On November 3, 2000, the court denied Petitioner's motion to terminate probation associated with the 1996 Conviction.
On December 22, 2000, during the pendency of immigration proceedings, Mr. Verhovskoy informed Petitioner he was withdrawing from representation. (ER at 30.) On January 19, 2001, Petitioner received a copy of the State Bar of California's Stipulation Form -Actual Suspension, indicating Mr. Verhovskoy had been suspended by the State Bar of California in September 2000. (ER at 130.) On January 28, 2001,*fn3 Petitioner filed a complaint against Mr. Verhovskoy with the State Bar. (ER at 128-30.) Petitioner had been represented by Mr. Verhovskoy since 1996, and had paid him over $20,000 in fees for representation in immigration proceedings and criminal defense. Based on Petitioner's complaint and State Bar investigation, Mr. Verhovskoy admitted to some violations. On February 5, 2003 he was again suspended from the practice of law. (ER at 131-34.) In 2001, following Mr. Verhovskoy's withdrawal, Petitioner retained new criminal defense and immigration counsel. (ER at 115.)
In the removal proceedings, the Immigration Judge found Petitioner removable as an alien convicted of crime of moral turpitude within five years of admission and as an alien convicted of two or more crimes involving moral turpitude. Petitioner sought relief, including adjustment of status, asylum and relief under the convention against torture, but he was unsuccessful due to his criminal record. On December 13, 2001 Petitioner was ordered deported to Russia. (ER at 116; Bettwy Decl. Ex. at 9-34.) On January 14, 2003, the removal order was affirmed by the Board of Immigration Appeals ("BIA"). (Bettwy Decl. Ex. at 35-36.) Challenging the Immigration Judge's decision to deny asylum and adjust his status, Petitioner appealed to the Ninth Circuit. The Ninth Circuit construed the appeal as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, and transferred the case to this District (case no. 04cv2595-W(BLM)). The petition was denied on May 2, 2005. (Bettwy Decl. Ex. at 53 et seq.) On February 9, 2007, the Ninth Circuit denied review. Petitioner has been in ICE custody since June 28, 2007. In state court proceedings, on August 30, 2001, Petitioner filed a motion to reinstate the appeal of his 1996 Conviction with ...