Mesa-Echevarria v. Immigration & Naturalization Service , 67 F. App'x 579 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 19 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
VINCENTE EMILIO MESA-
ECHEVARRIA,
Plaintiff - Appellant, No. 02-1374
v. (D.C. No. 02-Z-1265)
(D. Colo.)
IMMIGRATION AND
NATURALIZATION SERVICE,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges. **
Mr. Mesa-Echevarria, in federal custody and appearing pro se, appeals from
the district court’s dismissal of his habeas corpus petition pursuant to 28 U.S.C. §
2241.
Mr. Mesa-Echevarria, a Cuban citizen, is in the custody of the Immigration
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and the appellate record, this three-judge
**
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
and Naturalization Service (“INS”) in Colorado. The record indicates that he was
paroled into this country in 1980 for emergent and humanitarian reasons. He was
convicted in a New York state court of first-degree assault (intentionally causing
serious physical injury by means of a sharp instrument) on January 27, 1983, and
was sentenced to five to fifteen years imprisonment. The conviction was affirmed
by the Appellate Division on September 13, 1984. On July 19, 1995, he was
placed in the custody of the INS and was ordered deported based on the
conviction. See 8 U.S.C. § 1182(a)(2)(A)(i)(I) (1995) (exclusion based upon
crime of moral turpitude).
In his habeas petition and in this appeal, Mr. Mesa-Echevarria contests his
now expired state conviction claiming that exculpatory evidence was not
submitted to the grand jury or at trial, ineffective assistance of counsel, collusion
between the judge and the prosecutor, and lack of due process. We agree with the
district court that we lack jurisidiction under § 2241. R. Doc. 3. We note that
Mr. Mesa-Echevarria does not contest the fact of his counseled conviction. See
Contreras v. Schiltgen, 122 F.3d 30, 32 (9th Cir. 1997), on reh’g, 151 F.3d 906,
907 (9th Cir. 1998) (“[W]e must hold that when a habeas petition [under § 2241]
attacks the use of a prior conviction as a basis for INS custody, and the prior
sentence has expired, federal habeas review is limited. When the federal
proceeding is governed by statutes that limit inquiry to the fact of conviction,
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there can be no collateral review of the underlying conviction except for Gideon
[right to counsel] claims.”).
Accordingly, the district court’s dismissal of Mr Mesa-Echevarria’s habeas
petition is AFFIRMED. The motion to proceed in forma pauperis is GRANTED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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