The opinion of the court was delivered by: George H. WU United States District Judge
ORDER SUMMARILY DISMISSING ACTION FOR LACK OF SUBJECT MATTER JURISDICTION
Petitioner is currently in the custody of the Department of Homeland Security, Immigration, and Customs Enforcement, incarcerated at the Pinal County Jail in Florence, Arizona. On November 10, 2011, petitioner filed a pro se "4th Ammended [sic] Civil Complaint" ("Pet.") herein, ostensibly pursuant to 28 U.S.C. § 2255; the All Writs Act, 28 U.S.C. § 1651; 28 U.S.C. § 1361; the General Federal Question Jurisdiction Statute, 28 U.S.C. § 1331; the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202; and the Administrative Procedures Act, 5 U.S.C. § 704. Notwithstanding petitioner's reference to these statutes, the Court will proceed under the assumption that petitioner is seeking habeas relief under 28 U.S.C. § 2255, as the bulk of the relief sought appears to be an order vacating his criminal convictions.
As best the Court can glean from the Petition, petitioner is currently awaiting deportation as a result of a State criminal conviction for statutory rape (Case No. RIF137195) and an unspecified State firearm conviction (Case No. 333950). (Pet. at 5, 18-19.) The Petition purports to be challenging these State court convictions as well as petitioner's immigration removal order. Petitioner appears to further be alleging that the deportation proceedings and resulting removal order violates his rights to be free from double jeopardy. (Pet. at 20.)*fn1
For the reasons discussed hereafter, this action is subject to dismissal because the Court lacks jurisdiction to consider this action.
I. Section 2255 is inapplicable to petitioner's claims.
As explained, petitioner purports, inter alia, to be seeking relief under 28 U.S.C. § 2255. Under 28 U.S.C. § 2255(a):
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, or that the court was without jurisdiction to impose such sentences, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
It appears from the face of the Petition that petitioner is currently in federal custody. However, it does not appear that petitioner is in federal custody as a result of a federal criminal conviction or sentence. Rather, petitioner appears to be in the custody of immigration authorities pending removal and seeks to challenge the legality of the underlying State court convictions. Thus, relief under 28 U.S.C. § 2255 is unavailable to petitioner, since that statute expressly applies only to "[a] prisoner in custody under sentence of a court established by Act of Congress."
II. The Court lacks subject matter jurisdiction over challenges to petitioner's immigration removal order.
To the extent petitioner is challenging his immigration removal proceedings based upon his contention that the underlying California state court criminal convictions were improperly considered for purposes of his immigration removal proceedings, the Court lacks jurisdiction over such matters because petitioner's claims appear to directly challenge his underlying immigration removal order.
The REAL ID Act of 2005*fn2 eliminates district court habeas jurisdiction over orders of removal in immigration proceedings and vests jurisdiction to review such orders exclusively in the courts of appeals. See Momeni v. Chertoff, 521 F.3d 1094, 1095-96 (9th Cir. 2008); see also 8 U.S.C. § 1252(a)(5) ("Notwithstanding any other provision of law . . . including section 2241 . . . a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter."). Accordingly, the Real ID Act of 2005 divests this Court of jurisdiction to review petitioner's removal order and, therefore, the Court lacks jurisdiction over petitioner's claims.
The Court notes that, although the REAL ID Act of 2005 has eliminated
the district court's jurisdiction in some respects, the district
courts retain subject matter jurisdiction over 28 U.S.C. § 2241
petitions that do not involve final orders of removal. See Nadarajah
v. Gonzales, 443 F.3d 1069, 1075-76 (9th Cir. 2006); see also
Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942, 946 (9th
Cir. 2008). Specifically, an alien detainee may be entitled to federal
habeas corpus relief under
28 U.S.C. § 2241 if he has been subjected to prolonged and indefinite
detention as defined by the Supreme Court, see Zadvydas v. Davis, 533
U.S. 678, 687, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001)*fn3
and/or he has not been provided an adequate
opportunity to contest the necessity of his continued detention
through the immigration removal proceedings, Casas-Castrillon, 535
F.3d at 950-51. As currently pled, the Petition does not appear to
raise such a claim.*fn4 To the extent petitioner
believes that he is entitled to relief on this basis, he may file a
writ of ...