Zamarripa-Torres v. Bureau of Immigration & Customs Enforcement ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 18, 2009
No. 09-60162
Summary Calendar Charles R. Fulbruge III
Clerk
SERGIO ZAMARRIPA-TORRES,
Petitioner-Appellant
v.
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT; UNITED
STATES DEPARTMENT OF HOMELAND SECURITY; IMMIGRATION
CUSTOMS ENFORCEMENT; BRUCE PEARSON, Warden, Federal
Correctional Center Yazoo City; ERIC H. HOLDER, JR., U.S. ATTORNEY
GENERAL,
Respondents-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:08-CV-299
Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
Sergio Zamarripa-Torres (Zamarripa), federal prisoner # 20151-047,
pleaded guilty to conspiracy to distribute and possess with intent to distribute
500 grams or more of methamphetamine in the District of Nebraska. According
to Zamarripa’s allegations, the Bureau of Immigration and Customs
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 09-60162
Enforcement (BICE) subsequently placed an immigration detainer on him.
Zamarripa appeals the district court’s dismissal of his petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241 and for writ of error coram nobis
challenging his conviction and the detainer placed on him.1
Zamarripa argues that his claims met the requirements of the savings
clause of 28 U.S.C. § 2255, thereby making them cognizable in a § 2241 petition.
He maintains that his claims met the requirements of the savings clause of
§ 2255 because they relied upon multiple Supreme Court decisions.
In this court, Zamarripa does not challenge the district court’s denial of his
request for a writ of error coram nobis. Accordingly, Zamarripa has waived any
challenge he could have raised to the denial of coram nobis relief. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Zamarripa raised claims that his counsel was ineffective for not explaining
to him the immigration consequences of his guilty plea and that he would be
tortured if he were removed to Mexico, but he did not assert that a subsequent
Supreme Court decision established that he was actually innocent of the crime
of his conviction because his conduct had been decriminalized. Accordingly, to
the extent that Zamarripa sought to challenge his conviction, his claims did not
meet the requirements of the savings clause of § 2255, and they were not
cognizable in a § 2241 petition. See Padilla v. United States, 416 F.3d 424, 426-
27 (5th Cir. 2005).
The issuance of the detainer did not place Zamarripa “‘in custody’ for the
purposes of 28 U.S.C. § 2241.” Zolicoffer v. United States DOJ, 315 F.3d 538,
541 (5th Cir. 2003). As Zamarripa was not in custody under the detainer, the
district court did not have jurisdiction under § 2241 to consider Zamarripa’s
challenges to the detainer. See id. at 540-41. Furthermore, “the REAL ID Act
1
At the time he filed his petition, Zamarripa was incarcerated at the
Federal Correctional Complex in Yazoo City, Mississippi, within the jurisdiction
of the district court.
2
No. 09-60162
has divested federal courts of jurisdiction over § 2241 petitions attacking
removal orders.” Rosales v. BICE, 426 F.3d 733, 736 (5th Cir. 2005). If a final
order of removal is entered against Zamarripa, his sole means of obtaining
judicial review of that order would be to file a petition for review in the
appropriate court of appeals. See id.
AFFIRMED.
3