The opinion of the court was delivered by: John A. Houston United States District Judge
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
Petitioner, Maria Del Rio Rocio Jiminez ("petitioner"), through counsel, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2241, seeking to withdraw her guilty plea and vacate her judgment of conviction. Respondent filed an answer to the petition. After careful consideration of the pleadings and relevant exhibits submitted by the parties, and for the reasons set forth below, this Court DENIES the petition in its entirety.
On November 13, 2008, petitioner plead guilty to one count of Inducing and Encouraging Illegal Aliens to Enter the United States and Aiding and Abetting (8 U.S.C. §1324 (a)(1)(A)(iv) and (v)(II)). Doc. # 1 at 29. On February 2, 2009, petitioner was convicted and sentenced to 12 months and one day in prison. Id. at 47-48.
Petitioner is a citizen of Mexico and has been a Lawful Permanent Resident of the United States since 1993. Id. at 3. On January 19, 2010, the Department of Homeland Security brought removal proceedings against petitioner under Section 212(a)(6)(E)(i) of the Immigration and Nationality Act based on petitioner's February 2, 2009 conviction. Id. at 52. Subsequently, petitioner filed an application for cancellation of removal under Section 240A(a) of the Immigration and Nationality Act. Id. at 57. After examination of the conviction records, the Immigration Court found that petitioner was convicted of an aggravated felony and thus was ineligible for cancellation of removal. Id. at 58-59. Petitioner then moved for a continuance arguing that she would file a writ of habeas corpus. at 59. The Immigration Court denied petitioner's motion on the grounds that petitioner was seeking collateral relief which is not a grounds for which petitioner is entitled to a continuance. Id. On May 3, 2010, petitioner was ordered removed from the United States to Mexico. Id. at 60.
On July 23, 2010, petitioner filed the instant petition for writ of habeas corpus alleging that she was denied the effective assistance of counsel at the time of her guilty plea in violation of her federal constitutional rights. Id. at 1. Respondent filed an answer to the petition on October 16, 2010. Doc. # 6 at 1.*fn1
In the instant petition, petitioner states that she never received advice from counsel as to the immigration consequences of her plea. Doc. # 1 at 7. She argues that her attorney never told her that alien smuggling is an aggravated felony and that a conviction for the crime would result in mandatory custody with no deportation relief after her prison sentence. Id. at 86. Petitioner claims she is innocent of the charges to which she pled guilty and would have proceeded with trial had her attorney informed her about the immigration consequences of her guilty plea. Id. at 7. Furthermore, she claims she could have tried to negotiate with the United States Attorney for a disposition involving 8 U.S.C. §4 -misprision of felony - which the Board of Immigration Appeals has held is not an aggravated felony and would thus make her eligible for cancellation of removal. Id. at 7-8.
Petitioner filed the instant writ of habeas corpus pursuant to 28 U.S.C. §2241. Id. at 21. However, in its response, the Government characterized the petition as a §2255. Doc. # 6 at 1. For the reasons below, the Court finds this petition is properly characterized as a §2241 petition.
A §2255 habeas petition is available for "a prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . " 28 U.S.C. §2255. See alsoDaniels v. United States, 532 U.S. 374, 377 (2001)(explaining that Section 2255 is a post-conviction remedy for federal prisoners in custody under sentence of a federal court.) Here, petitioner is no longer "in custody under sentence of a court established by Act of Congress." Petitioner has already served her federal sentence and is awaiting deportation. Thus, a petition brought under §2255 would be improper.
28 U.S.C. §2241 "confers jurisdiction on a district court to issue a writ of habeas corpus when a federal or state prisoner establishes that he 'is in custody in violation of the Constitution or laws or treaties of the United States.'" White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004). Furthermore, 28 U.S.C. §2241 is also available for defendants in pre-trial detention or who are awaiting extradition. Id. Petitioner is no longer serving her federal sentence and is currently in immigration custody awaiting ...