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Perez v. United States

United States District Court, Central District of California

November 4, 2014

ALBERTO NORIEGA PEREZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

Alberto Noriega Perez, Petitioner, Pro se, Los Angeles, CA.

United States of America, Respondent: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Civil Division, Los Angeles, CA; Diana L Pauli, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Criminal Division - U.S. Courthouse, Los Angeles, CA; Patricia E Bruckner, LEAD ATTORNEY, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

JOHN E. MCDERMOTT, UNITED STATES MAGISTRATE JUDGE.

The Court submits this Report and Recommendation to the Honorable Stephen V. Wilson, United States District Judge, pursuant to 28 U.S.C. Section 636 and General Order 05-07 of the United States District Court for the Central District of California.

INTRODUCTION

On November 25, 2013, pro se Petitioner Alberto Noriega Perez (" Noriega" or " Petitioner") filed a petition for habeas corpus (" Petition"). (Docket Nos. 1 & 2.) On January 13, 2014, Respondent filed a motion to dismiss the Petition. (Docket No. 8.)

On February 10, 2014, Noriega filed an " Amendment to Habeas Corpus Filing Under 28 U.S.C. § 2241" (" February 10 Filing"). (Docket No. 9.) Respondent construed the February 10 Filing as a First Amended Petition and filed a motion to dismiss the First Amended Petition on March 3, 2014.[1] (Docket No. 13.)

On April 2, 2014, the Court sua sponte extended the time for Noriega to file an opposition to Respondent's motion to dismiss the First Amended Petition from March 24, 2014, to April 16, 2014. (Docket No. 15.)

On April 3, 2014, Noriega filed an " Amendment to Writ of Error Habeas Corpus Filing Under 28 U.S.C. § 2241, 28 U.S.C. § 1651(a), Emergency Ex (sic) Party" (" April 3 Filing"). (Docket No. 16.) Respondent construed the April 3 Filing as a Second Amended Petition (" SAP") and filed a motion to dismiss the SAP on April 17, 2014 (" Motion"). (Docket No. 17.)

On April 17, 2014, Petitioner filed an " Answer to Government Opposition to Petitioners Writ of Error and Habeas Corpus Filing Under 28 U.S.C. § 2241 28 U.S.C. § 1651(a)" (" April 17 Filing"). The April 17 Filing, apparently Petitioner's opposition to Respondent's motion to dismiss the First Amended Petition, was stricken from the record on May 7, 2014, because it was rendered moot by the filing of the SAP (April 3 Filing) and Respondent's Motion to dismiss the SAP.[2] (Docket No. 19; see Docket Nos. 16-17.)

On May 15, 2014, Petitioner filed his Opposition to Respondent's Motion. (Docket No. 20.) Respondent did not file a Reply.

The Motion is ready for decision. For the reasons discussed below, the Court recommends that the SAP be dismissed, without prejudice, for lack of jurisdiction.[3]

BACKGROUND

According to Respondent, Noriega is a native and citizen of Mexico. Noriega first entered the United States on June 24, 1960. (See Motion, Exh. 1.) Noriega was convicted in the United States District Court for the Southern District of California on one count of conspiracy to bring illegal aliens to the United States for financial gain (8 U.S.C. § 1324(a)(2)(B)(ii); 18 U.S.C. § 371), one count of conspiracy to harbor illegal aliens (8 U.S.C. § 1324(a)(1)(A)(iii), (v)(I)), eighteen counts of aiding and abetting bringing illegal aliens to the United States for financial gain (8 U.S.C. § 1324(a)(2)(B)(ii); 18 U.S.C. § 2), and eighteen counts of aiding and abetting harboring illegal aliens (8 U.S.C. § 1324(a)(1)(A)(iii); 18 U.S.C. § 2). (See United States of America v. Alberto Noriega-Perez, Case No. CR 06- 02268-JM, Docket No. 279.) The court sentenced Noriega to 60 months in prison on September 30, 2010. (See id.) According to Respondent, the Bureau of Immigration and Customs Enforcement (" ICE") initiated removal proceedings against Noriega and detained him in a detention facility in El Centro, California, during his proceedings. (Motion at 4.) An immigration judge subsequently ordered Noriega removed to Mexico pursuant to Immigration and Nationality Act, as amended, section 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony. (Docket No. 25 at Exhibit (" Exh.") A; see Motion, Exh. 1.) The Board of Immigration Appeals (" BIA") dismissed Petitioner's appeal of the immigration judge's removal order on October 7, 2013, rendering Petitioner's removal order administratively final. (Docket No. 25 at Exh. B); 8 U.S.C. § 1101(a)(47)(B)(i); Singh v. Gonzales, 499 F.3d 969, 976, 979 (9th Cir. 2007). ICE removed Noriega to Mexico on December 26, 2013. (Motion, Exh. 1.) Noriega is prohibited from entering, attempting to enter, or being in the United States at any time. (Id.)

On April 3, 2014, Petitioner filed the underlying SAP seeking relief pursuant to 28 U.S.C. § 2241 and 28 U.S.C. § 1651(a) in this Court. As best the Court can glean from the allegations in the SAP, Petitioner seeks to collaterally attack his final order of removal, his December 26, 2013, removal to Mexico, and matters related thereto. (SAP at 5-7, 13-16, 20.) Moreover, Petitioner appears to challenge both his underlying criminal conviction on various grounds, including challenges to the proceedings in the sentencing court and on direct appeal to the Ninth Circuit Court of Appeals and the United States Supreme Court, and his collateral proceedings pursuant to 28 U.S.C. § 2255 in the sentencing court. (SAP at 8-12, 17.) Petitioner apparently asks that this Court set aside his underlying criminal conviction (SAP at 13-15, 18-19), vacate his final order of removal (SAP at 14-15), and direct the government to allow Petitioner to return to the United States " immediate[ly]" . (SAP at 16, 19).

Respondent moves to dismiss the SAP on the basis of lack of subject matter jurisdiction and for failure to state a claim.[4] First, Respondent argues the Court lacks jurisdiction under 28 U.S.C. § 2241 because Petitioner is not " in custody" following his removal to Mexico. (Motion at 4-7.) Second, Respondent contends that, under the immigration laws of the United States, this Court lacks jurisdiction over Petitioner's claims challenging his final order of removal, his December 26, 2013, removal to Mexico, and matters related thereto. (Motion at 7-10.) Finally, Respondent claims that Petitioner fails to satisfy the requirements for a writ of error coram nobis and the SAP must be dismissed for failure to state a claim for relief pursuant to 28 U.S.C. § 1651(a).[5] (Motion at 10-13).

DISCUSSION

I. THE COURT LACKS JURISDICTION OVER PETITIONER'S CLAIMS ALLEGING THAT HE WAS " ILLEGALLY REMOVED" TO MEXICO

The Court lacks jurisdiction to address Petitioner's claims that he was illegally removed to Mexico. On May 11, 2005, Congress enacted the REAL ID Act, Pub.L. No. 109- 13, Div. B., 119 Stat. 231, which stripped district courts of habeas jurisdiction over final orders of removal, and vested jurisdiction to review such orders exclusively in the courts of appeals. See 8 U.S.C. § 1252(a)(5). Specifically, section 1252(a)(5) provides:

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and section[] . . . 1651 of such title, 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 . . .

8 U.S.C. § 1252(a)(5). Moreover, under 8 U.S.C. § 1252(b)(9) -- also known as the " zipper clause" -- any " questions of law and fact" arising from an order of removal must be raised in a petition for review of that order. 8 U.S.C. § 1252(b)(9); Singh, 499 F.3d at 976, 978 (explaining that section 1252(b)(9) is known as the " zipper clause because it " consolidates or zips judicial review of immigration proceedings into one action in the court of appeals") (internal quotation marks omitted). Thus, the district court lacks jurisdiction over petitions that seek judicial review of " 'any questions of law and fact' arising from an order of removal." [6] Morales-Izquierdo v. Dep't of Homeland Sec., 600 F.3d 1076, 1082 (9th Cir. 2010); see id. at 1082-83 (explaining that a claim arises from an order of removal when the alien cannot assert the claim without simultaneously challenging his removal order). Furthermore, under 8 U.S.C. § 1252(g), federal courts have no authority to review the Attorney General's decision or action to " commence proceedings, adjudicate cases, or execute removal orders." 8 U.S.C. § 1252(g).

In the SAP, Petitioner challenges his " illegal removal" to Mexico. As best the Court can glean from Petitioner's allegations, he states that his removal improperly barred his access to courts to challenge his underlying criminal conviction and/or removal to Mexico, including in this action that was pending when Petitioner was removed on December 26, 2013. (SAP at 5-7, 13-14, 16, 20 (alleging due process and equal protection violations).) Petitioner alleges that the government conspired to illegally remove him, apparently to prevent Petitioner from exposing government misconduct. (SAP at 5-8, 13-15, 17, 20.) In particular, he states that his removal without first giving him notice of the BIA's dismissal of his appeal was " designed to obstruct his access to the court." (SAP at 14.) Petitioner also states that Respondent moved to dismiss this action for lack of jurisdiction on the basis of " false" and " misleading" statements.[7] (SAP at 6, 15.) Moreover, Petitioner claims that removal caused him to suffer material deprivation, including the loss of retirement and medical benefits. (SAP at 14-15 (alleging cruel and unusual punishment).) He requests that the Court vacate his final order of removal (SAP at 14-15), and " order [the government] to allow petitioner[] unobstructed access to this country" (SAP at 16; see id. at 19).

This Court lacks jurisdiction over Petitioner's claims that seek judicial review of a final order of removal, 8 U.S.C. § 1252(a)(5), " questions of law and fact" arising from a final order of removal, 8 U.S.C. § 1252(b)(9); see Singh, 499 F.3d at 977-78; see also Morales-Izquierdo, 600 F.3d at 1082-83, or " the decision or action" to " commence proceedings, adjudicate cases, or execute removal orders against" Petitioner. 8 U.S.C. § 1252(g); see Sadhvani v. Chertoff, 460 F.Supp.2d 114, 122 (D.D.C. 2006) (no jurisdiction pursuant to section 1252(g) over claim alleging violation of constitutional rights resulting from execution of removal order without notifying the BIA or the Department of Justice and while petitioner's motion to reopen the removal proceedings was still pending, because " [w]hatever legal label petitioner puts on them, these allegations are quite clearly causes or claims by or on behalf of an alien arising from the decision or action by the Attorney General to execute removal orders against that alien") (internal quotation marks, ellipses and brackets omitted). In other words, the SAP is subject to dismissal for lack of jurisdiction to the extent Petitioner claims he was " illegally removed" to Mexico.[8]

II. THE COURT LACKS JURISDICTION OVER PETITIONER'S CLAIMS CHALLENGING HIS UNDERLYING CRIMINAL CONVICTION

As noted above, Petitioner appears to challenge his underlying criminal conviction and/or sentence on various grounds in the SAP.[9] (SAP at 8-12, 17.) A federal prisoner challenging the legality of his sentence generally must do so by a motion under 28 U.S.C. § 2255, filed in the sentencing court. 28 U.S.C. § 2255(a); see Harrison v. Ollison, 519 F.3d 952, 954 (9th Cir. 2008) (" A federal prisoner challenging the legality of a sentence must generally do so by a motion under 28 U.S.C. § 2255."); Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (" motions to contest the legality of a sentence must be filed under § 2255 in the sentencing court"). Here, although Petitioner has filed the current Petition as a habeas corpus petition pursuant to § 2241, to the extent he is actually challenging the legality of his underlying criminal conviction and/or sentence, these claims are more properly the subject of a motion brought under § 2255. See, e.g., United States v. 1982 Sanger 24' Spectra Boat, 738 F.2d 1043, 1046 (9th Cir. 1984) (moving party's label for motion is not controlling; court will construe motion to be the type proper for relief requested).

Under the " savings clause" in § 2255, a federal prisoner may contest the legality of a sentence under § 2241 if he can demonstrate that the remedy available under § 2255 is " inadequate or ineffective to test the legality of his detention." United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (quoting § 2255); see also Hernandez, 204 F.3d at 864-65. The savings clause is a very narrow exception. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003). The remedy under section 2255 is not inadequate or ineffective merely because a prior § 2255 motion was denied or because a second § 2255 motion would be barred. See id.; see also Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000); Tripati v. Henman, 843 F.2d 1160, 1162-63 (9th Cir. 1988). A petitioner may invoke the savings clause only if he: " (1) makes a claim of actual innocence, and (2) has not had an 'unobstructed procedural shot' at presenting that claim." Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006) (citations omitted); see also Ivy, 328 F.3d at 1060. The burden is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). Here, Petitioner has provided no basis upon which this Court could conclude that section 2255 is either inadequate or ineffective. In particular, Petitioner's allegations of judicial bias against the trial judge (SAP at 10-11; Opposition at 6-7) do not render his section 2255 remedy inadequate or ineffective. See Tripati, 843 F.2d at 1163 (" appellant's section 2255 motion would not be 'inadequate or ineffective' because of alleged judicial bias"). As such, Petitioner cannot invoke the savings clause of section 2255 and section 2241 jurisdiction cannot be invoked.

Accordingly, to the extent Petitioner seeks habeas corpus relief and challenges the legality of his underlying criminal conviction and/or sentence, the pending action falls under § 2255 and not § 2241, and this Court lacks jurisdiction over these claims, which must be brought in the sentencing court in the Southern District of California.[10] See supra; 28 U.S.C. § 2255(a) (jurisdiction over a § 2255 motion lies only in the sentencing court); Hernandez, 204 F.3d at 864.

Finally, Petitioner's reliance on the All Writs Act, 28 U.S.C. § 1651(a), is misplaced. The All Writs Act provides that " all courts . . . may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). It is not itself a source of jurisdiction. Lights of America, Inc. v. United States District Court, 130 F.3d 1369, 1370 (9th Cir. 1997). Thus, to the extent the claims in the SAP challenging Petitioner's underlying criminal conviction and/or sentence can be construed as having been brought pursuant to a petition for a writ of error coram nobis (SAP at 1), this Court further lacks jurisdiction over these claims because a petition for a writ of error coram nobis must be brought in the sentencing court.[11] Madigan v. Wells, 224 F.2d 577, 578 n. 2 (9th Cir. 1955).

Accordingly, the SAP should be dismissed, without prejudice, for lack of jurisdiction.[12] The Court need not reach Respondent's alternative arguments for dismissal.[13]

RECOMMENDATION

THE COURT, THEREFORE, RECOMMENDS that the District Court issue an Order: (1) accepting this Report and Recommendation; (2) granting Respondent's motion to dismiss in part; and (3) directing that Judgment be entered dismissing this action in its entirety without prejudice for lack of jurisdiction.


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