State of Iowa v. Victor Hernandez-Galarza , 2015 Iowa Sup. LEXIS 61 ( 2015 )

IN THE SUPREME COURT OF IOWA
No. 13–0917
Filed May 22, 2015
STATE OF IOWA,
Appellee,
vs.
VICTOR HERNANDEZ-GALARZA,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County,
Odell McGhee, Judge.
Petitioner appeals the denial of his petition for writ of habeas
corpus. DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED.
Benjamin D. Bergmann of Parrish Kruidenier Dunn Boles Gribble
& Gentry LLP, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kevin R. Cmelik and
Alexandra Link, Assistant Attorneys General, John P. Sarcone, County
Attorney, and Kevin D. Hathaway, Assistant County Attorney, for
appellee.
2
ZAGER, Justice.
Victor Hernandez-Galarza appeals the denial of his petition for writ
of habeas corpus. He maintains he received ineffective assistance of
counsel under the Sixth Amendment to the United States Constitution
and article I, section 10 of the Iowa Constitution due to counsel’s failure
to adequately inform him of adverse immigration consequences resulting
from his guilty plea to the charge of fraudulent practice in the fourth
degree. See Iowa Code § 714.12 (2011). He asserts that at the time he
entered his guilty plea he was “subject to a U.S. Immigration and
Customs Enforcement [(ICE)] detainer,” he is now “subject to deportation
proceedings,” and because of his guilty plea he is “ineligible for
cancelation of removal” proceedings under federal immigration law. He
claims that absent counsel’s deficient advice, he would not have pled
guilty to the charge of fraudulent practice in the fourth degree.
The district court summarily denied Hernandez-Galarza’s habeas
petition. Hernandez-Galarza appealed, and we transferred the case to
the court of appeals. The court of appeals affirmed the district court
judgment. Hernandez-Galarza applied for further review, which we
granted. For the reasons set forth below, we conclude the district court
properly denied the petition for writ of habeas corpus. We affirm the
decision of the court of appeals and the judgment of the district court.
I. Background Facts and Proceedings.
On August 2, 2011, Hernandez-Galarza approached Polk County
Investigator Don Sharr. Hernandez-Galarza informed Investigator Sharr
he was “willing to turn himself into the Department of Transportation for
using a false social security number to title vehicles in Iowa.” Upon
further investigation, Investigator Sharr discovered Hernandez-Galarza
had used a false social security number to apply for certificates of title
3
for three separate vehicles. However, because of his “willingness to
surrender,” Investigator Sharr agreed to charge Hernandez-Galarza with
only one count of fraudulent practice in the third degree in violation of
Iowa Code section 714.11(3) and one count of fraudulent applications in
violation of Iowa Code section 321.97. Thereafter, Hernandez-Galarza
signed a written statement admitting that “[o]n or about July 26,
2010, . . . [he] used a false social security number to apply . . . for [a]
certificate of title for a motor vehicle.”
On August 10, 2011, law enforcement filed a preliminary
complaint charging Hernandez-Galarza with one count of fraudulent
practice in the third degree and one count of fraudulent applications for
“falsely us[ing] a social security number not assigned to [him] to make a
false application for an [I]owa certificate of title.” The State filed a trial
information charging Hernandez-Galarza with one count of fraudulent
applications. See Iowa Code § 321.97. The State later orally amended
the trial information to charge Hernandez-Galarza with one count of
fraudulent practice in the third degree. See id. § 714.11(3).
On October 21, Hernandez-Galarza entered a written guilty plea to
the reduced charge of fraudulent practice in the fourth degree in
violation of Iowa Code section 714.12. Contained within the written
guilty plea was the following bolded paragraph: “I understand that if I am
not a citizen of the United States that a criminal conviction or deferred
judgment may result in deportation or other adverse immigration
consequences under federal immigration laws.” Both Hernandez-Galarza
and his attorney signed and acknowledged this written guilty plea. In its
sentencing order, the district court granted Hernandez-Galarza a
deferred judgment. It also placed him on probation for a period of one
year, supervised by the Iowa Department of Corrections (DOC).
4
On February 14, 2012, the district court entered a probation
discharge order. The district court ordered that the “defendant is hereby
discharged from probation” and “the Court’s criminal records with
reference to the [defendant’s] deferred judgment shall be expunged.”
On March 12, 2013, Hernandez-Galarza filed the subject “Petition
for Writ of Habeas Corpus, or in the alternative, Petition for Writ of
Coram Nobis” in district court. In the petition, he alleged he received
ineffective assistance of counsel under the Sixth Amendment to the
United States Constitution and article I, section 10 of the Iowa
Constitution. This claim is based on counsel’s alleged failure to
adequately inform him of adverse immigration consequences resulting
from his guilty plea to the charge of fraudulent practice in the fourth
degree and the corresponding deferred judgment. Specifically,
Hernandez-Galarza maintained that at the time he entered his guilty plea
he was “subject to a[n] . . . [ICE] detainer,” he is now “subject to
deportation proceedings,” and because of his guilty plea he is “ineligible
for cancelation of removal” proceedings under federal immigration law as
he no longer qualifies for the petty-offense exception codified at 8 U.S.C.
§ 1182(a)(2)(A)(ii)(II) (2012). 1 Hernandez-Galarza claims that absent
counsel’s deficient advice, he would not have pled guilty to the charge of
fraudulent practice in the fourth degree.
With respect to his habeas petition, Hernandez-Galarza pled the
following facts:
a. The application for the writ of habeas corpus is filed on
behalf of Victor Hernandez Galarza.
1There is no evidence in the record that Hernandez-Galarza is subject to an
order of detention or that he is currently the subject of removal proceedings. In his
petition, he makes reference to a detention order, a notice to appear, and an ICE bond.
5
b. Mr. Hernandez is collaterally subject to the restraint of
the consequences of the outcome of Polk County Case . . .
captioned State of Iowa v. Victor Hernandez Galarza. The
outcome in this case was a result of ineffective assistance
of counsel by trial counsel, specifically by trial counsel’s
failure to adequately advise Mr. Hernandez of the
immigration consequences of his guilty plea, as required
by Padilla.[2]
c. The consequences of the guilty plea are in violation of Mr.
Hernandez’s United States Constitutional Rights under
Amendments 5, 6 and 14, and article one, section ten of
the Iowa Constitution, due to ineffective assistance of
counsel.
d. No court or tribunal has previously adjudicated the issue
of ineffective assistance of counsel in any proceeding.
e. No application for writ of habeas corpus has been
previously made or refused by any court.
On May 8, the district court summarily denied the petition for writ
of habeas corpus. 3 The district court explained,
This Court finds that A Petition for Habeas Corpus is
concerned with “unlawful detention,” that is detention
lacking sufficient cause or evidence. . . . This Court can find
no evidence of arbitrary state action and further can find no
evidence of illegal detention. Also, Section 822.1 . . . [of] the
Code provides that Habeas Corpus does not apply to a
person who has been sentenced for a public offense.
Therefore, Habeas Corpus relief is DENIED.
Hernandez-Galarza appealed, and we transferred the case to the
court of appeals. The court of appeals determined the habeas petition
failed to comply with the pleading requirements of Iowa Code section
663.1(1) by failing to specify how, where, or by whom Hernandez-Galarza
was detained. The court of appeals also noted that Hernandez-Galarza
was no longer arguably in the custody of the State of Iowa because any
2Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).
3On appeal, Hernandez-Galarza does not challenge the district court’s denial of
his petition for writ of coram nobis. Thus, we do not consider it as part of this appeal.
6
alleged sentence had expired. Accordingly, he could no longer challenge
his state deferred judgment by a writ of habeas corpus.
Hernandez-Galarza applied for further review, which we granted.
II. Standard of Review.
Habeas corpus proceedings are actions at law and are generally
reviewable for corrections of errors at law. See Iowa R. App. P. 6.907;
Cummings v. Lainson, 239 Iowa 1193, 1196, 33 N.W.2d 395, 397 (1948)
(“The writ of habeas corpus does not invoke the court’s equitable powers
and the appeal is not de novo . . . .”). However, we review claims of
ineffective assistance of counsel de novo. Daughenbaugh v. State, 805
N.W.2d 591, 593 (Iowa 2011).
III. Overview of Issue Presented.
A. Collateral Consequences. There has recently been an
increase in what is typically referred to as “collateral consequences” that
flow from a criminal conviction. Id. As we recently explained,
Federal law now imposes dozens of sanctions for persons
with felony drug convictions. States have also imposed an
increasing number of sanctions as a result of criminal
convictions. In Iowa, for example, a person who is convicted
of sexual offenses will be subject to registration laws and
other restrictions that apply to sex offenders, and a deferred
judgment for eluding a law enforcement vehicle may have an
impact on one’s driver’s license.
Id. (citations omitted).
Further, recent developments in the law regarding a defendant’s
right to effective assistance of counsel recognize that lawyers
representing criminal defendants must advise their clients whether their
pleas carry a risk of deportation. See Padilla v. Kentucky, 559 U.S. 356,
374–75, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 298–99 (2010). In
Padilla, the Supreme Court of the United States held that a criminal
defendant who pled guilty to drug charges received constitutionally
7
deficient assistance of counsel when his lawyer failed to advise him of a
serious consequence—deportation—that would automatically occur
because of his conviction. Id. at 359, 373–75, 130 S. Ct. at 1478, 1486–
87, 176 L. Ed. 2d at 290, 298–99.
This case presents a clear example of the impact collateral
consequences may have on criminal proceedings. Hernandez-Galarza
pled guilty to the charge of fraudulent practice in the fourth degree
believing he would receive a deferred judgment, and that upon satisfying
his one-year term of probation and other conditions, the court would
expunge any record of his conviction. Hernandez-Galarza now alleges
that after receiving a deferred judgment he became ineligible for
cancellation of removal proceedings under federal immigration law
because he no longer qualifies for the petty-offense exception. See 8
U.S.C. § 1182(a)(2)(A)(ii)(II). As such, he asserts he is subject to removal
from the United States. See id. § 1182(a)(2). He seeks to attack his state
criminal proceedings to avoid these claimed consequences.
B. Avenues for Relief. In Iowa, there are three avenues for
challenging a criminal conviction: direct appeal, see Iowa Code
§ 814.6(1)(a); postconviction relief, see id. ch. 822; and habeas corpus,
see id. ch. 663. Because he received a deferred judgment, Hernandez-
Galarza could not challenge his conviction on direct appeal. See State v.
Stessman, 460 N.W.2d 461, 462 (Iowa 1990) (holding a deferred
judgment is interlocutory and cannot meet the final judgment
requirement for appeals). Neither could he bring a postconviction relief
action under Iowa Code chapter 822. See Daughenbaugh, 805 N.W.2d at
598 (holding a deferred judgment is not a “conviction” under Iowa’s
postconviction relief statute). Thus, we must determine whether habeas
corpus relief under Iowa Code chapter 663 is a cognizable avenue for
8
Hernandez-Galarza to challenge his deferred judgment based on
ineffective assistance of counsel.
IV. Whether Hernandez-Galarza Is Entitled to Relief Under
Iowa Code Chapter 663.
As noted by the court of appeals, Hernandez-Galarza seizes on a
footnote in our Daughenbaugh opinion to support his use of habeas
corpus to attack his deferred judgment. See id. at 599 n.1. There, we
stated: “We express no opinion upon whether or under what
circumstances a guilty plea followed by a deferred judgment might be
subject to collateral attack under Iowa Code chapter 663.” Id. We must
now address one possible circumstance. We begin our analysis by
setting forth a brief history of the writ of habeas corpus. Next, we will
discuss federal precedent and other state law decisions that have dealt
with comparable issues in this context. Finally, we consider whether
Hernandez-Galarza is entitled to relief under Iowa Code chapter 663.
A. History of the Writ of Habeas Corpus. Commonly referred to
as the “Great Writ,” Jones v. Cunningham, 371 U.S. 236, 243, 83 S. Ct.
373, 377, 9 L. Ed. 2d 285, 291, (1963), the remedy of habeas corpus is
derived from the common law of England, see Ex parte Holman, 28 Iowa
88, 125 (1869) (Beck, J., in chambers). It was originally “a writ of right,
to which every person [was] entitled, . . . inherent in the English people.”
Holman, 28 Iowa at 125. Its chief purpose was to “seek the release of
persons [unlawfully] held in actual, physical custody in prison or jail.”
Jones, 371 U.S. at 238, 83 S. Ct. at 375, 9 L. Ed. 2d at 288. The remedy
was subsequently transferred to the United States as part of the common
law. See Holman, 28 Iowa at 125–26. It is now recognized by both the
United States Constitution and the Iowa Constitution. U.S. Const. art. I,
§ 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be
9
suspended, unless when in Cases of Rebellion or Invasion the public
Safety may require it.”); Iowa Const. art. I, § 13 (“The writ of habeas
corpus shall not be suspended, or refused when application is made as
required by law, unless in case of rebellion, or invasion the public safety
may require it.”).
Although the writ originally provided an avenue of relief for
prisoners to challenge their actual, physical confinement, it has since
been extended to include challenges during the time a person is released
on bail or parole. See Hensley v. Mun. Ct., 411 U.S. 345, 351–53, 93 S.
Ct. 1571, 1575–76, 36 L. Ed. 2d 294, 300–01 (1973) (bail); Jones, 371
U.S. at 242–43, 83 S. Ct. at 377, 9 L. Ed. 2d at 290–91 (parole). It also
“include[s] an inquiry into the proper custody of minor children.” Lamar
v. Zimmerman, 169 N.W.2d 819, 821 (Iowa 1969). Historically, the writ
provided a postconviction remedy after the time for appeal had passed,
allowing an individual to obtain an evidentiary hearing and a
determination of any alleged denial of constitutional rights. Birk v.
Bennett, 258 Iowa 1016, 1023, 141 N.W.2d 576, 580 (1966). However,
habeas corpus is not an avenue to determine the guilt or innocence of an
individual, pass upon errors at trial, or challenge the sufficiency of the
evidence. Scalf v. Bennett, 260 Iowa 393, 398, 147 N.W.2d 860, 863
(1967). Rather, the question is whether the trial court lacked jurisdiction
to enter judgment. Id. Constitutionally ineffective assistance of counsel
constitutes a jurisdictional defect and is reviewable by habeas corpus.
Id. at 398, 147 N.W.2d at 864.
However, in 1970 the Iowa legislature, by statute, limited the
circumstances in which an individual may use habeas corpus to
challenge a conviction. See 1970 Iowa Acts ch. 1276, § 1 (codified at
Iowa Code § 663A.1 (1971) and now found at Iowa Code § 822.1 (2011)).
10
Today, Iowa Code section 822.1 provides: “The provisions of sections
663.1 through 663.44, inclusive, shall not apply to persons convicted of,
or sentenced for, a public offense.” Thus, pursuant to Iowa Code section
822.1, the legislature foreclosed habeas corpus as a postconviction
remedy for persons “convicted of, or sentenced for, a public offense.” See
Allen v. State, 217 N.W.2d 528, 531 (Iowa 1974) (noting that Iowa Code
section 663A.1, now section 822.1, “seems to abrogate habeas corpus for
persons convicted of, or sentenced for, a public offense”), overruled on
other grounds by Davis v. State, 345 N.W.2d 97, 99 (Iowa 1984). The
postconviction procedure contained in Iowa Code chapter 822 now
provides the proper remedial vehicle for persons “convicted of, or
sentenced for, a public offense” to challenge their convictions. Iowa Code
§ 822.2. Here, however, because Hernandez-Galarza received a deferred
judgment, he has not been “convicted of, or sentenced for, a public
offense.” Id.; see Daughenbaugh, 805 N.W.2d at 598. Thus, insofar as
Iowa Code section 822.1 is concerned, Iowa Code section 663 might be
available to Hernandez-Galarza.
B. Federal Precedent. The federal habeas statute gives the
United States district courts jurisdiction to entertain habeas petitions
from persons who are “in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2241(c)(3) (emphasis
added); see also id. §§ 2255(a), 2254(a). Under federal law, actual
physical detention is not required. See Jones, 371 U.S. at 240, 83 S. Ct.
at 376, 9 L. Ed. 2d at 289. Rather, a person is deemed to be in
“constructive custody” even when he or she is released on parole, id. at
242–43, 83 S. Ct. at 377, 9 L. Ed. 2d at 290–91; released on bail or on
his or her own recognizance, Hensley, 411 U.S. at 351–53, 93 S. Ct. at
1575–76, 36 L. Ed. 2d at 300–01; or unconditionally released before
11
completion of proceedings on his or her habeas petition, Carafas v.
LaVallee, 391 U.S. 234, 237–38, 88 S. Ct. 1556, 1559–60, 20 L. Ed. 2d
554, 558–59 (1968). This constructive custody concept is predicated on
the notion that such restrictions, although falling short of immediate
physical imprisonment, significantly restrain an individual’s liberty in
ways not shared by the public generally so as to fall within the historical
ambit of the writ’s availability. See Jones, 371 U.S. at 240, 83 S. Ct. at
376, 9 L. Ed. 2d at 289 (“History, usage, and precedent can leave no
doubt that, besides physical imprisonment, there are other restraints on
a man’s liberty, restraints not shared by the public generally, which have
been thought sufficient in the English-speaking world to support the
issuance of habeas corpus.”).
Notwithstanding, a habeas petitioner is not in custody for purposes
of filing a federal habeas petition once the sentence imposed for a
conviction has fully expired. Maleng v. Cook, 490 U.S. 488, 492, 109
S. Ct. 1923, 1926, 104 L. Ed. 2d 540, 546 (1989) (per curiam). Instead,
the petitioner must be in custody pursuant to the judgment or sentence
he or she seeks to attack at the time the petition is filed. Id. at 492, 109
S. Ct. at 1926, 104 L. Ed. 2d at 545. In imposing this requirement, the
United States Supreme Court reasoned that while it has liberally
construed the in-custody requirement, it has “never extended it to the
situation where a habeas petitioner suffers no present restraint from a
conviction.” Id. at 492, 109 S. Ct. at 1926, 104 L. Ed. 2d at 545–46.
Further, because adverse collateral consequences accompany many
criminal convictions, a contrary holding would allow a petitioner whose
sentence has fully expired to “challenge the conviction for which it was
imposed at any time on federal habeas.” Id. at 492, 109 S. Ct. at 1926,
12
104 L. Ed. 2d at 546. “This would read the ‘in custody’ requirement out
of the statute . . . .” Id.
However, if the petitioner files a habeas petition while the sentence
imposed for a conviction he or she seeks to attack still restrains his or
her liberty, the sentence subsequently expires, and he or she is
discharged while his petition is still pending, the collateral consequences
of the conviction may prevent the case from being moot. See Carafas,
391 U.S. at 237–39, 88 S. Ct. at 1559–60, 20 L. Ed. 2d at 558–59. In the
federal context, the case or controversy requirement of Article III, Section
2, of the United States Constitution means that the petitioner,
throughout the litigation, “ ‘must have suffered, or be threatened with,
an actual injury traceable to the defendant and likely to be redressed by
a favorable judicial decision.’ ” Spencer v. Kemna, 523 U.S. 1, 7, 118
S. Ct. 978, 983, 140 L. Ed. 2d 43, 49–50 (1998) (quoting Lewis v. Cont’l
Bank Corp., 494 U.S. 472, 477, 110 S. Ct. 1249, 1253, 108 L. Ed. 2d
400, 410 (1990)). Collateral consequences previously deemed sufficient
to avoid dismissal on mootness grounds include one’s inability to vote,
engage in certain businesses, or serve as a juror. See Carafas, 391 U.S.
at 237, 88 S. Ct. at 1559, 20 L. Ed. 2d at 558. However, “the collateral
consequences of [a] conviction are not themselves sufficient to render an
individual ‘in custody’ for the purposes of a habeas attack upon it.”
Maleng, 490 U.S. at 492, 109 S. Ct. at 1926, 104 L. Ed. 2d at 545.
In applying the foregoing principles, the United States Court of
Appeals for the Ninth Circuit held the immigration consequences
stemming from a state conviction did not render the defendant in
custody for federal habeas purposes when the petitioner filed his habeas
13
petition after his prison sentence and period of probation had expired.4
Resendiz v. Kovensky, 416 F.3d 952, 955, 958 (9th Cir. 2005). In so
holding, the Ninth Circuit reasoned that immigration consequences
resulting from a state conviction are collateral to the underlying
conviction, in that they “arise from the action of an . . . independent
sovereign . . . and are consequences over which the state trial judge has
no control whatsoever.” Id. at 957. Thus, because the petitioner filed his
habeas petition after his state sentence had fully expired, the Ninth
Circuit concluded the federal courts did not have jurisdiction to entertain
the petition. Id. at 958.
When a habeas petition is filed prior to the expiration of the
sentence, however, the federal courts have suggested a different result.
For example, in Perez v. Greiner, 296 F.3d 123, 124–25 & n.3 (2d Cir.
2002), the petitioner filed a habeas petition challenging his New York
State conviction for second-degree robbery prior to the expiration of the
sentence on the conviction. After filing the petition, “[t]he [Immigration
and Naturalization Service (INS)] issued a warrant of
removal/deportation against [him].” Id. at 125. The basis for the
warrant was the petitioner’s prior illegal entry into the United States. Id.
4Every other federal circuit court of appeals to address this issue has concluded
similarly. See, e.g., Llovera-Linares v. Florida, 559 F. App’x 949, 951–52 (11th Cir.
2014) (per curiam) (holding defendant was not in custody for federal habeas purposes
when the sentence on his state conviction had expired before he filed his federal habeas
petition, despite the fact that he was later detained by immigration authorities because
of the conviction); Ogunwomoju v. United States, 512 F.3d 69, 74 (2d Cir. 2008) (same);
Broomes v. Ashcroft, 358 F.3d 1251, 1254–55 (10th Cir. 2004) (same), abrogated on
other grounds by Padilla, 559 U.S. at 365 & n.9, 374, 130 S. Ct. at 1481 & n.9, 1486,
176 L. Ed. 2d at 293 & n.9, 299; cf., e.g., United States v. Esogbue, 357 F.3d 532, 534
(5th Cir. 2004) (holding defendant was not in custody for federal habeas purposes when
the sentence on his federal conviction had expired before he filed his federal habeas
petition, despite the fact that he was later detained by immigration authorities because
of the conviction); Kandiel v. United States, 964 F.2d 794, 796 (8th Cir. 1992) (per
curiam) (same).
14
In addressing whether the petition was moot, the United States Court of
Appeals for the Second Circuit noted,
In the absence of any other impediment, [the petitioner]
could return to the United States after that ten-year period.
If, instead, the present conviction for robbery in the second
degree stands, [he] will be barred from ever reentering the
United States without permission of the United States
Attorney General. Such a barrier to reentry clearly would
suffice to prevent [his] habeas petition from being mooted.
Id. at 126 (footnote omitted) (citation omitted). 5 Nevertheless, the Second
Circuit concluded the case was moot because “[the petitioner] ha[d] also
been convicted for Attempted Criminal Sale of a Controlled Substance in
the Third Degree,” which independently “render[ed] him permanently
inadmissible to the United States.” Id. Thus, “[b]ecause [he was]
permanently barred from this country on a wholly separate ground, the
. . . challenged robbery conviction [could] have no meaningful effect on
his admissibility and hence [could not] serve as a possible collateral
consequence.” Id.
C. State Law Precedent. Other states have addressed whether
the immigration consequences flowing from a state conviction are
themselves sufficient to sustain a habeas challenge. In People v. Villa,
202 P.3d 427, 429 (Cal. 2009), the petitioner asserted a state conviction
resulted in the institution of removal proceedings by federal immigration
authorities. The Supreme Court of California affirmed the dismissal of
the habeas petition when the petitioner challenged the state conviction
after the sentence had fully expired. Id. At the time, California’s habeas
statute provided: “ ‘Every person unlawfully imprisoned or restrained of
5See also Steele v. Blackman, 236 F.3d 130, 135 n.4 (3d Cir. 2001) (“Erroneous
conviction of an aggravated felony will have several continuing and serious legal
consequences for [petitioner], including serving as a permanent bar preventing his
return to the United States to visit his family.”).
15
his liberty, under any pretense whatever, may prosecute a writ of habeas
corpus, to inquire into the cause of such imprisonment or restraint.’ ”
Id. at 430 (emphasis added) (quoting Cal. Penal Code § 1473(a)). The
California Supreme Court interpreted the language “imprisoned or
restrained” as imposing a custody requirement, such that a “prerequisite
to gaining relief on habeas corpus is a petitioner’s custody.” Id.
However, as under federal law, actual physical detention is not required,
and California has expanded the instances in which a person may bring
a habeas claim to persons released on bail or their own recognizance,
probation, and parole. Id. at 431. Further, as under federal law,
“collateral consequences of a criminal conviction . . . do not of themselves
constitute constructive custody.” Id.
Applying these principles, the Villa Court concluded that because
the petitioner had completed the sentence on his underlying state
conviction prior to filing his habeas petition, he was no longer in the
custody of the State of California. Id. at 433. In concluding the
collateral consequences of his expired state conviction did not constitute
constructive custody, the court noted
[t]hat the INS, a completely different governmental entity,
chose to resurrect that old conviction and use it to form the
basis of a new and collateral consequence for [petitioner],
while undoubtedly unfortunate for him and his family, does
not—without more—convert his detention by federal
immigration authorities . . . into some late-blossoming form
of custody for which the State of California is responsible.
Id.
Finally, it noted,
The critical factor in determining whether a petitioner
is in actual or constructive state custody, then, is not
necessarily the name of the governmental entity signing the
paycheck of the custodial officer in charge, or even whether
the petitioner is within the geographic boundaries of the
16
State of California. Instead, courts should realistically
examine the nature of a petitioner’s custody to determine
whether it is currently authorized in some way by the State
of California. . . . [The petitioner] is not subject to a detainer
hold placed by California state officials. Nor is his detention
. . . either a part of the sentence (probation) . . . imposed for
his 1989 crime or otherwise authorized by state law.
Instead, his detention is directly traceable to applicable
federal laws governing immigration and to the discretion of
federal immigration officials and, presumably, that of the
United States Attorney General. Under such circumstances,
[he] cannot be considered to be in custody for state habeas
corpus purposes.
Id. at 434 (citations omitted).
The Supreme Court of Illinois has reached a similar result in a
slightly different context. See People v. Carrera, 940 N.E.2d 1111, 1120
(Ill. 2010). In Carrera, federal immigration authorities instituted removal
proceedings against the petitioner based on his guilty plea to a drug
offense under Illinois law. Id. at 1112. Immigration authorities
instituted the removal proceedings after the petitioner had fully
completed his probation on the drug offense. Id. at 1113. The petitioner
challenged his guilty plea under Illinois’s postconviction statute. Id. The
state moved to dismiss, alleging the petitioner was not a “ ‘person
imprisoned in the penitentiary’ ” as required under the Act. Id. (emphasis
added) (quoting 725 Ill. Comp. Stat. Ann. 5/122-1(a) (West 2006)).
Similar to federal law, the Illinois Supreme Court has held the statutory
phrase “imprisoned in the penitentiary” precludes “those who ha[ve]
completed their sentences from using the Act’s remedial machinery solely
to purge their criminal records” for lack of standing. Id. at 1114.
Ultimately, the Illinois Supreme Court held the petitioner did not
have standing to challenge his state law conviction because he had fully
served his sentence prior to the filing of his petition. Id. at 1122. In so
holding, it noted, “[T]he state has nothing to do with defendant’s
17
deportation, and has no control over the actions of the INS.” Id. at 1120.
Further, it rejected the petitioner’s contention that such a result left him
without a remedy altogether. Id. at 1121. It noted that the
defendant has a remedy to challenge his conviction, so long
as the challenge is made while defendant is serving the
sentence imposed on that conviction. While sympathetic to
defendant’s plight, this court cannot expand the remedy set
forth in the Act in order to bring defendant’s case within the
reach of the Act.
Id.
Applying a framework similar to the federal habeas framework, the
Court of Appeals of Kansas reached a different result in a factually
similar case. See Rawlins v. State, 182 P.3d 1271, 1274, 1277 (Kan. Ct.
App. 2008). In Rawlins, the petitioner was subject to deportation based
on her conviction for battery under Kansas law. Id. at 1277. The
petitioner subsequently brought a claim under a Kansas statute that
“gives prisoners a right to collaterally attack their sentences” and which
was “modeled after [the] federal habeas corpus statute.” Id. at 1275. The
petitioner filed her petition while still on probation for the underlying
offense. Id. at 1274. Thereafter, she was discharged from probation and
the district court dismissed her petition for lack of jurisdiction. Id. In
reversing the district court’s dismissal, the Kansas court of appeals
began with the premise that, like the federal habeas statute, the Kansas
statute imposes a custody requirement. Id. at 1275. The court then
concluded that because the petition was filed prior to the petitioner’s
completion of her probation, the court initially had jurisdiction over the
claim. Id. at 1277.
It then turned to the issue of whether the completion of her
probation rendered the case moot. Id. In concluding the petitioner’s
completion of her probation did not render the case moot, the court
18
reasoned that several of the adverse collateral consequences she faced as
a result of her conviction were sufficient to prevent her petition from
becoming moot. Id. at 1277–78. It identified the following collateral
consequences: possible deportation, inability to attain citizenship,
inability to vote, inability to serve on a jury, and inability to hold public
office. Id. at 1277. 6
In contrast, the Supreme Court of Georgia has rejected the notion
that a petitioner’s habeas challenge is procedurally barred once the
sentence imposed on a conviction completely expires. 7 See Parris v.
6Other jurisdictions have also adopted a framework similar to the federal habeas
framework, such that the petitioner must be in custody pursuant to the judgment or
sentence he or she seeks to attack at the time the petition is filed. See, e.g., Richardson
v. Comm’r of Corr., 6 A.3d 52, 57–58 (Conn. 2010) (“We reject the petitioner’s assertion
that the custody requirement . . . may be satisfied by confinement alone and we
reaffirm that a petitioner [must] be in custody on the conviction under attack at the time
the habeas petition is filed . . . .” (alteration and omission in original) (internal quotation
marks omitted)); Hickman v. State, 153 S.W.3d 16, 23 (Tenn. 2004) (“Accordingly, we
hold that a person is not ‘restrained of liberty’ for purposes of the habeas corpus statute
unless the challenged judgment itself imposes a restraint upon the petitioner’s freedom
of action or movement.” (quoting Tenn. Code Ann. § 29-21-101 (2000)); E.C. v. Va.
Dep’t of Juvenile Justice, 722 S.E.2d 827, 834 (Va. 2012) (“The predicate to establish
habeas corpus jurisdiction remains; the petitioner must have been detained at the time
the petition is filed and the petition must be filed within a discrete time period.”); May v.
People, 2005 Guam 17 ¶ 12 (2005) (“As the Maleng court held, we also hold, that once
the sentence imposed for [a] conviction completely expire[s], the collateral
consequence[s] [are not themselves] sufficient to render an individual ‘in custody’ for
the purposes of a habeas attack upon it.”).
7The Supreme Court of Vermont has also arguably held the collateral
consequences stemming from a conviction may be sufficient to sustain a collateral
attack on the conviction, despite a statutory in-custody requirement, even when the
conviction itself no longer imposes a direct restraint on the petitioner. In re Smith, 144
Vt. 494, 496, 479 A.2d 152, 153 (1984) (finding no jurisdiction when petitioner moved
for relief after completing kidnapping sentence and “failed to allege or demonstrate any
collateral consequence stemming from that sentence”). However, it has more recently
suggested that it would follow federal precedent in analyzing the propriety of such
claims. See In re Chandler, 67 A.3d 261, 265 (2013) (“Our approach accords with that
adopted by the U.S. Supreme Court in considering the related federal habeas
statutes.”). These cases are distinguishable, however, because they involve a conviction
and the actual imposition of a sentence. Neither a conviction nor a sentence is present
with this deferred judgment.
19
State, 208 S.E.2d 493, 496 (Ga. 1974). The Georgia Supreme Court
concluded, “The mere fact that the state sentence has been completely
served [is not] a bar to attacking it through habeas corpus even though
the petition is not initially filed until after the sentence is completed.”
Parris, 208 S.E.2d at 496; accord Capote v. Ray, 577 S.E.2d 755, 760
(Ga. 2002) (“In interpreting this provision, we have clearly held that one’s
liberty may be restrained by a prior, expired conviction used to enhance
a current sentence . . . .”), overruled on other grounds by Crosson v.
Conway, 728 S.E.2d 617, 620 (Ga. 2012). For example, in Tharpe v.
Head, 533 S.E.2d 368, 368–69 (Ga. 2000), the Georgia Supreme Court
held a person could file a habeas petition to challenge a prior conviction
for which the sentence had fully expired when the prior conviction was
used to sway a jury to impose the death penalty in a penalty-phase
proceeding in a later murder trial. In so concluding, the court reasoned
that the use of the prior conviction to sway the jury to impose a death
sentence constituted sufficient adverse collateral consequences to avoid
mootness concerns and justify a habeas attack, despite the fact the
petitioner’s sentence on the underlying conviction had fully expired. Id.
at 369–70.
D. Analysis Under Iowa Habeas Corpus. We turn now to
determine whether Hernandez-Galarza is entitled to relief under Iowa
Code chapter 663. We begin by considering whether he has sufficiently
met the pleading requirements of Iowa Code section 663.1. Next, we
consider whether there are sufficient facts to sustain a writ of habeas
corpus.
First, in filing a petition for a writ of habeas corpus, a petitioner
must comply with the requirements of Iowa Code section 663.1. See
Farrant v. Bennett, 255 Iowa 704, 708, 123 N.W.2d 888, 891 (1963)
20
(“[C]ompliance with the requirement[s] of the statute is mandatory.”).
“The statute squarely places that task upon the applicant.” Id. Failure
to comply with the requirements of this section is grounds for dismissal.
Id.; accord Ashby v. Haugh, 260 Iowa 1047, 1050, 152 N.W.2d 228, 230
(1967) (“We have held the requirements of section 663.1 . . . are
mandatory and failure of compliance is ground for dismissal . . . .”).
Iowa Code section 663.1 provides:
The petition for the writ of habeas corpus must state:
1. That the person in whose behalf it is sought is
restrained of the person’s liberty, and the person by whom
and the place where the person is so restrained, mentioning
the names of the parties, if known, and if unknown
describing them with as much particularity as practicable.
2. The cause or pretense of such restraint, according
to the best information of the applicant; and if by virtue of
any legal process, a copy thereof must be annexed, or a
satisfactory reason given for its absence.
3. That the restraint is illegal, and wherein.
4. That the legality of the restraint has not already
been adjudged upon a prior proceeding of the same
character, to the best knowledge and belief of the applicant.
5. Whether application for the writ has been before
made to and refused by any court or judge, and if so, a copy
of the petition in that case must be attached, with the
reasons for the refusal, or satisfactory reasons given for the
failure to do so.
In this case, Hernandez-Galarza has failed to comply with Iowa
Code section 663.1 in several respects. First, he failed to state “the
person by whom and the place where” he is currently restrained. Iowa
Code § 663.1(1). His application merely states, “The application for the
writ of habeas corpus is filed on behalf of Victor Hernandez Galarza.” It
does not state by whom or where he is restrained as required by the
statute. See id. Most critically, Hernandez-Galarza does not claim he is
21
illegally restrained by the State of Iowa. Second, he failed to attach a
copy of the legal process currently causing the alleged unlawful restraint,
or give any reason why it is not attached. See id. § 663.1(2). He has
stated what he believes to be the cause of the restraint, namely his guilty
plea to fraudulent practices in the fourth degree. However, he did not
attach a copy of any documents that are allegedly causing the restraint.
As noted earlier, the record is devoid of any documentation to support
the allegation that Hernandez-Galarza is subject to a detainer by or
involved in removal proceedings with ICE. Hernandez-Galarza’s failure
to comply with these pleading requirements are alone grounds for
dismissal of the action.
Hernandez-Galarza has also failed to allege sufficient facts to
sustain a writ of habeas corpus. Iowa Code chapter 663 establishes
requirements that must be followed by the court after the petition is filed.
First, if the petitioner satisfies the pleading requirements of Iowa Code
section 663.1, the court is instructed to issue a writ. Id. § 663.9. The
court is to direct the writ to the party responsible for the “unlawful[]
detain[ment],” namely the defendant. Id. § 663.8. Second, the writ is to
be served on the defendant by the sheriff or another qualified person. Id.
§ 663.13. However, “if the defendant has not the plaintiff in custody, the
service may be made upon any person who has, in the same manner and
with the same effect as though the person had been made defendant
therein.” Id. § 663.15. Third, if service is properly effectuated, the
defendant must answer the petition and appear for any scheduled
hearings. Id. § 663.27. Additionally, “[t]he defendant must . . . produce
the body of the plaintiff, or show good cause for not doing so.” Id.
§ 663.28. Finally, “[i]f no sufficient legal cause of confinement is shown,
the plaintiff must be discharged.” Id. § 663.37.
 22
Here, even if the district court were to issue a writ of habeas
corpus, it could not properly direct the writ to the party responsible for
the “unlawful[] detain[ment]” as required by Iowa Code section 663.8.
Assuming a federal custodian, as pled, it is questionable whether
Hernandez-Galarza is currently detained by federal immigration
authorities in any way. See Flowers v. Haugh, 207 N.W.2d 766, 767
(Iowa 1973) (noting that the purpose of habeas corpus is to “cause one
alleged to be unlawfully restrained to be expeditiously brought before the
court so the legality of restraint can be judicially examined,” such that
“[t]he defendant named is not necessarily an adversary seeking to uphold
the restraint; he is a person who can produce the plaintiff in court”).
Hernandez-Galarza asserts that at the time he entered his guilty plea he
was “subject to a[n] . . . [ICE] detainer,” he is now “subject to deportation
proceedings,” and because of his guilty plea he is “ineligible for
cancelation of removal” proceedings under federal immigration law.
However, an ICE detainer does not cause an individual to come into the
custody of ICE. It is simply a request that another law enforcement
agency hold an individual so ICE may assume custody of him or her at a
future point in time. See 8 C.F.R. § 287.7(a) (2014) (“The detainer is a
request that such agency advise the Department [of Homeland Security],
prior to release of the alien, in order for the Department to arrange to
assume custody, in situations when gaining immediate physical custody
is either impracticable or impossible.”). More importantly, because
Hernandez-Galarza failed to attach a copy of the requisite legal process
noted above, we cannot determine whether Hernandez-Galarza is
currently detained by federal authorities. Consequently, a writ of habeas
corpus could not properly be directed to the party responsible for the
“unlawful[] detain[ment]” as required by Iowa Code section 663.8.
23
Further, compliance with other sections of the statute is not
possible. Pursuant to Iowa Code section 663.15, service is to be made on
a defendant who “has . . . the plaintiff in custody.” (Emphasis added.)
The State of Iowa, as the only defendant, does not have custody or
constructive custody of Hernandez-Galarza in this case. Pursuant to
Iowa Code section 663.28, “[t]he defendant must . . . produce the body of
the plaintiff, or show good cause for not doing so.” (Emphasis added.)
Hernandez-Galarza is in no way being restrained by the State of Iowa, it
cannot produce the body, and it likely has no interest in the location of
Hernandez-Galarza. Finally, the ultimate remedy sought is discharge
from confinement. See id. § 663.37. The State of Iowa simply does not
have the ability to discharge Hernandez-Galarza from any confinement.
Federal precedent and precedent from other jurisdictions do not
assist Hernandez-Galarza. Under any analysis of constructive custody,
the State of Iowa is not detaining Hernandez-Galarza. As noted above, a
writ of habeas corpus must be addressed to the party responsible for the
“unlawful[] detain[ment].” Id. § 663.8. The district court entered its
probation discharge order for Hernandez-Galarza on February 14, 2012.
At the time he filed his petition on March 12, 2013, Hernandez-Galarza
was no longer detained by or in constructive custody of the State of Iowa.
See id. § 663.8. Instead, prior to filing his petition, Hernandez-Galarza
was “discharged from probation” and “the Court’s criminal records with
reference to the [his] deferred judgment [were] expunged.” There is
nothing in the record to support a conclusion that the State of Iowa has
Hernandez-Galarza in constructive custody. Hernandez-Galarza is
simply no longer restrained by the State of Iowa.
We recognize that the alleged restraint on Hernandez-Galarza may
be factually traceable to his state criminal proceedings. However, even
24
this connection cannot be factually determined based on the record
before us. Moreover, this alleged restraint is entirely the product of
federal immigration policy. See State v. Ramirez, 636 N.W.2d 740, 744
(Iowa 2001) (“[D]eportation does not have an effect on the range of
defendant’s punishment as far as the State of Iowa is concerned, because
it is not the sentence of the court which accepts the plea but of another
agency over which the trial judge has no control and for which he has no
responsibility.” (Internal quotation marks omitted.)), abrogated on other
grounds as recognized by Chaidez v. United States, 568 U.S. ___, ___ n.8,
133 S. Ct. 1103, 1109 n.8, 185 L. Ed. 2d 149, 158 n.8 (2013); accord
Resendiz, 416 F.3d at 957; Villa, 202 P.3d at 434; Carrera, 940 N.E.2d at
1120.
We cannot conclude the collateral consequences of Hernandez-
Galarza’s state criminal proceedings are sufficient to demonstrate the
State of Iowa is somehow currently detaining, has custody of, or has
possession of the body of Hernandez-Galarza. See Maleng, 490 U.S. at
492, 109 S. Ct. at 1926, 104 L. Ed. 2d at 545; Villa, 202 P.3d at 433;
Richardson v. Comm’r of Corr., 6 A.3d 52, 57–58 (Conn. 2010) (“We reject
the petitioner’s assertion that the custody requirement . . . may be
satisfied by confinement alone and we reaffirm that a petitioner [must] be
in custody on the conviction under attack at the time the habeas petition
is filed . . . .” (Alteration and omission in original.) (Internal quotation
marks omitted.)); Rawlins, 182 P.3d at 1277–78 (holding court had
jurisdiction when petitioner filed habeas petition prior to the expiration of
parole period); Hickman v. State, 153 S.W.3d 16, 23 (Tenn. 2004)
(“Accordingly, we hold that a person is not ‘restrained of liberty’ for
purposes of the habeas corpus statute unless the challenged judgment
itself imposes a restraint upon the petitioner’s freedom of action or
25
movement.”); E.C. v. Va. Dep’t of Juvenile Justice, 722 S.E.2d 827, 834
(Va. 2012) (“The predicate to establish habeas corpus jurisdiction
remains; the petitioner must have been detained at the time the petition
is filed and the petition must be filed within a discrete time period.”); May
v. People, 2005 Guam 17 ¶ 12 (2005) (“As the Maleng court held, we also
hold, that once the sentence imposed for [a] conviction completely
expire[s], the collateral consequence[s] [are not themselves] sufficient to
render an individual ‘in custody’ for the purposes of a habeas attack
upon it.”). Thus, because the probationary period entered against
Hernandez-Galarza in this case had completely expired by the time he
sought to challenge the outcome of his criminal proceedings, he does not
have a cognizable habeas claim. 8
We are not unsympathetic to Hernandez-Galarza. However,
habeas corpus is not an avenue by which an individual may collaterally
attack the outcome of a state criminal proceeding as an end in and of
itself. See Wright v. Bennett, 257 Iowa 61, 63, 131 N.W.2d 455, 456
(1964) (“The writ is available only where the release of the prisoner will
follow as a result of a decision in his favor.” (Internal quotation marks
omitted.)). Instead, habeas corpus is a means by which an individual
may challenge the outcome of a state criminal proceeding that currently
8Because it is not dispositive, we express no opinion as to whether or under
what circumstances an individual could successfully attack a deferred judgment
through a writ of habeas corpus more generally. Further, we express no opinion as to
whether or under what circumstances adverse immigration consequences stemming
from a state conviction would be sufficient to avoid dismissal on mootness grounds,
assuming the State were responsible for some form of constructive detainment at the
time a habeas petition was filed. See In re B.B., 826 N.W.2d 425, 428–30 (Iowa 2013)
(holding adverse collateral consequences were sufficient to avoid mootness concerns
when individual who had been involuntarily committed was discharged from court
ordered treatment by the time the appeal reached us, because involuntary commitment
results in social stigma and could be used as evidence in future proceedings).
26
imposes a restraint on his or her liberty. See Shirts v. State, 259 Iowa
726, 727, 145 N.W.2d 465, 465 (1966) (“Habeas corpus is a summary
remedy available to a person who is illegally restrained. Since plaintiff is
no longer restrained, the question is moot and the appeal is dismissed
. . . .” (Citation omitted.)). Hernandez-Galarza’s liberty is no longer
restrained by the State of Iowa based on his deferred judgment. The
collateral consequences of his plea are not alone sufficient to sustain a
writ of habeas corpus.
V. Conclusion.
We conclude Hernandez-Galarza is not entitled to relief under Iowa
Code chapter 663. He has failed to comply with the pleading
requirements of Iowa Code section 663.1. Further, there are insufficient
facts to sustain a writ of habeas corpus. At the time he filed his petition,
the State of Iowa was not a cognizable defendant because Hernandez-
Galarza was no longer subject to any restraint as a result of his state
deferred judgment.
We recognize that in Daughenbaugh we left open the possibility
that there may be circumstances in which an individual could
collaterally attack a state criminal proceeding resulting in a deferred
judgment through a state writ of habeas corpus. See 805 N.W.2d at 599
n.1. For the reasons stated above, this case does not present such a
circumstance. We affirm the decision of the court of appeals and the
judgment of the district court.
DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED.