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Alvarado Henriquez v. Sessions

United States District Court, E.D. California

July 17, 2019

OSCAR RAFAEL ALVARADO HENRIQUEZ, aka OSCAR R. ALVARADO, Petitioner,
v.
JEFFERSON B. SESSIONS III, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Petitioner is confined in the Yuba County Jail awaiting deportation. Petitioner is proceeding pro se and in forma pauperis with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. By order filed February 22, 2019, petitioner was ordered to show cause, within fourteen days, why this action should not be dismissed. On March 12, 2019, the undersigned recommended that this action be dismissed based on petitioner's failure to show cause. On March 13, 2019, petitioner filed a statement apologizing for his failure to timely respond to the motion to dismiss, explaining his limited law library access, and addressing the underlying merits of his claims. On March 20, 2019, petitioner filed objections, again addressing the underlying merits of his claims, reiterating his claim that he was not informed of the immigration consequences of accepting the plea bargain in the 2014 federal criminal proceedings in Kansas.

         As discussed below, the undersigned finds that petitioner's motion for stay of removal should be denied, and respondent's motion to dismiss should be granted. II. Background Petitioner is a native and citizen of Guatemala. (ECF No. 21 at 3.) Petitioner entered the United States illegally, without documentation. Subsequently, according to records of the United States Department of Homeland Security (“DHS”), petitioner adjusted status to lawful permanent resident on August 1, 1996. (ECF No. 21 at 3.)

         On August 11, 2014, in United States v. Alvarado, No. 14-cr-10050-01-JTM (D. Kansas), petitioner pled guilty to the unlawful use of a communication device in violation of 21 U.S.C. § 843(b). (ECF No. 21 at 12.) The plea agreement set forth the following factual basis for the guilty plea:

A few days before March 17, 2014, the defendant, Oscar R. Alvarado and his codefendants decide to take a road trip from California to another state. The defendant had his mother rent a car for the trip. A hidden compartment inside the rental car held approximately 6 pounds of methamphetamine which the defendant knew was there and was to be delivered to someone in another state. The arrangements to make this trip occurred over the telephone between the defendant and his codefendants. On March 17, 2014, while in Wichita, Kansas, the defendant was stopped for a traffic infraction while he was driving the rental car. As the officer approached the car, he smelled raw marijuana. The officer called for backup, and then searched the car. In addition to finding marijuana, approximately 6 pounds of a substance believed to be methamphetamine was found in a hidden compartment behind the back seat. The DEA lab tested the drugs and confirmed it was methamphetamine, with purity equal to approximately 3 pounds actual methamphetamine.
The defendant's use of his cellular telephone facilitated the plan to distribute methamphetamine to another person or persons who were located outside the state of California. In order to facilitate that delivery, the defendant and codefendants drove through Kansas, and the defendant used the telephone which was in the car when he was arrested in Kansas.

(ECF No. 21 at 13.) The plea agreement provided that petitioner “knowingly and voluntarily” waived any right to appeal or collaterally attack his conviction or sentence. (ECF No. 21 at 16-17.) The plea agreement also set forth the deportation consequences of petitioner's plea:

Deportation Consequences. Defendant recognizes that pleading guilty may have consequences with respect to his immigration status if he is not a citizen of the United States. Under federal law, a broad range of crimes are removable offenses, including the offense(s) to which defendant is pleading guilty. (Indeed, because defendant is pleading guilty to Unlawful use of a communication device, deportation is presumptively mandatory.)
Removal and other immigration consequences are the subject of a separate proceeding, however, and defendant understands that no one, including his attorney or the district court, can predict to a certainty the effect of his conviction on his immigration status. Defendant nevertheless affirms that he wants to plead guilty regardless of any immigration consequences that his plea may entail, even if the consequence is his automatic removal from the United States.

(ECF No. 21 at 18.) Petitioner signed the plea agreement on August 11, 2014, the same date it was signed by his attorney of record. (ECF No. 21 at 20.) In addition, on August 11, 2014, petitioner signed, and swore to in open court, a “Petition to Enter Plea of Guilty and Order Entering Plea, ” which was filed in the criminal court record, and in which stated:

(14) I have been advised and understand that if I am not a U.S. citizen, a conviction of a criminal offense may result in deportation from the United States, exclusion from admission to the United States, and/or denial of naturalization.

U.S. v. Alvarado, No. 14-cr-10050-01-JTM (ECF No. 69 at 3).

         On October 27, 2014, petitioner was sentenced to 48-months in federal prison. (ECF No. 21 at 7.) Judgment was entered on October 27, 2014. (Id. at 6.)

         Petitioner did not file an appeal or a motion to vacate his sentence under 28 U.S.C. § 2255. Alvarado, No. 14-cr-10050-01-JTM.

         Following completion of the federal prison term, petitioner was arrested on or about October 13, 2017, by the United States Immigration and Customs Enforcement (“ICE”) and detained at the Mesa Verde Detention Facility in Bakersfield, California, pending completion of ICE proceedings. (ECF No. 21 at 3.)

         On October 23, 2017, removal proceedings were initiated under INA § 240 by the filing of a Notice to Appear (“NTA”) in the San Francisco Immigration Court. (ECF No. 21 at 3, 22.) Petitioner was charged as removable under INA § 237(a)(2)(A)(iii)(B) (aggravated felony drug-trafficking conviction). (ECF No. 21 at 22.)

         On January 10, 2018, petitioner appeared via video-teleconference before an immigration judge “and through counsel admitted the allegations contained in the NTA and conceded removability under INA § 237(a)(2)(A)(iii)(B), but declined to designate a country of removal.” (ECF No. 21 ...


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