Escamilla v. Superintendent , 290 Va. 374 ( 2015 )

PRESENT: All the Justices
FELIPE MELENDEZ ESCAMILLA
v. Record No. 141121 OPINION BY
JUSTICE S. BERNARD GOODWYN
SUPERINTENDENT, RAPPAHANNOCK October 29, 2015
REGIONAL JAIL
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Sarah L. Deneke, Judge
In this appeal, we consider whether a Virginia circuit court has jurisdiction to provide
habeas corpus relief to a petitioner being detained by federal authorities because of immigration
issues arising as a consequence of a state conviction after the sentence for the state conviction
has expired.
Factual and Procedural Background
Felipe Melendez Escamilla was admitted to the United States as a lawful permanent
resident in 1999. He was arrested in 2003, after being caught removing radios from automobiles,
and charged with one count of grand larceny and three counts of tampering with a vehicle.
Escamilla pled guilty in the General District Court of Stafford County to petit larceny and to the
three misdemeanor tampering charges. Before pleading guilty, Escamilla asked his attorney if
his guilty plea would have adverse consequences on his immigration status as a lawful
permanent resident. His attorney erroneously advised him that there would be no negative
consequences because he would serve less than one year’s imprisonment. The general district
court sentenced him to twelve months’ incarceration with all but one month suspended for the
petit larceny charge, and 180 days’ incarceration, all of which was suspended, for each of the
tampering charges. All of the suspended sentences were suspended for three years, and all of
Escamilla’s sentences expired in 2006.
On November 18, 2013, Escamilla was detained by U.S. Immigration and Customs
Enforcement (ICE) authorities and taken to Rappahannock Regional Jail in preparation for
removal proceedings. In a document styled “Notice to Appear” (designated ICE Form I-862),
ICE charged that Escamilla was subject to removal because his 2003 petit larceny conviction
triggered the applicability of 8 U.S.C. § 1227(a)(2)(A)(iii), which provides that “[a]ny alien who
is convicted of an aggravated felony at any time after admission is deportable.” 1 The Notice to
Appear further charged that Escamilla was subject to removal pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(ii), because he had been convicted of two crimes of moral turpitude that did not
arise from a single scheme of criminal conduct. 2
On April 7, 2014, while in federal custody, Escamilla filed a petition for a writ of habeas
corpus in the Circuit Court of Stafford County alleging he was denied effective assistance of
counsel because the attorney representing him in the 2003 Stafford County petit larceny case
incorrectly informed him that his guilty plea would not have any negative immigration
consequences. Escamilla alleged that had he known pleading guilty to the petit larceny charge
could have resulted in his removal, he would have asked counsel to secure a sentence that would
not qualify as a predicate under 8 U.S.C. § 1227(a)(2)(A) or otherwise gone to trial on the grand
larceny charge.
The Superintendent of the Rappahannock Regional Jail moved to dismiss the petition on
the grounds that the circuit court lacked jurisdiction to consider Escamilla’s petition because he
was not in custody pursuant to the challenged conviction and because his petition was time-
1
“Aggravated felony” is defined in 8 U.S.C. § 1101(a)(43)(G) to include any “theft
offense” for which the term of imprisonment is at least one year.
2
The multiple schemes of criminal conduct refer to the Stafford County incident and a
2007 Fairfax County conviction for petit larceny for which Escamilla received a sentence of 180
days’ incarceration. Escamilla does not challenge the Fairfax conviction.
2
barred. The Superintendent also argued that he had failed to establish prejudice as required
under Strickland v. Washington, 466 U.S. 668 (1984), because he had not proven it would have
been reasonable to proceed to trial instead of pleading guilty.
The circuit court issued a letter opinion, granting the motion to dismiss. It held that it did
not have jurisdiction to hear the petition because Escamilla was not in custody for the purposes
of Code § 8.01-654 at the time he filed the petition. The circuit court further found that the
petition was untimely, having been brought more than ten years after the challenged conviction
became final. Escamilla objected to the court’s ruling, arguing that immigration detention was
sufficient to satisfy the custody requirement and that the petition was timely because it was
brought within one year of Escamilla’s discovery of the alleged ineffective assistance.
The circuit court entered an order dismissing the petition on June 23, 2014. Escamilla
appeals. 3
Escamilla assigns error as follows:
1. The Circuit Court erred when it ruled that Escamilla was not detained
without lawful authority so the court did not have jurisdiction to consider Mr.
Escamilla’s petition.
2. The Circuit Court erred when it ruled Escamilla’s petition was not
timely and granted the Superintendent’s motion to dismiss for lack of
jurisdiction. 4
3
Escamilla was deported some time during the habeas proceedings, but the parties agree
that his deportation does not render this appeal moot.
4
We note that, in his petition for appeal, Escamilla stated the second assignment of error
as follows: “The Circuit Court erred when it granted the Superintendent’s motion to dismiss for
lack of jurisdiction and ruled Escamilla’s petition was not timely.” (PFA 2; see also J.A.
preliminary (PDF) pg. 3). In his opening brief, however, the second assignment of error is stated
in a different sequence: “The Circuit Court erred when it ruled Escamilla’s petition was not
timely and granted the Superintendent’s motion to dismiss for lack of jurisdiction.” (Opening Br.
2). “We do not recognize any unauthorized substantive alteration to the assignment of error in
the petition for appeal which was the basis of this Court’s order granting the appeal.”
Commonwealth v. Herring, 288 Va. 59, 72, 758 S.E.2d 225, 232 (2014) (emphasis added). Even
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3. The Circuit Court erred when it granted the Superintendent’s motion to
dismiss on procedural grounds and thus denied Escamilla’s meritorious
ineffective assistance of counsel claim.
Analysis
Escamilla asserts that the circuit court erred in ruling that he was not detained without
lawful authority and that it did not have jurisdiction to consider his habeas corpus petition.
“Because entitlement to habeas relief is a mixed question of law and fact, the habeas court’s
findings and conclusions are not binding upon this Court, but are subject to review to determine
whether the court correctly applied the law to the facts.” Zemene v. Clarke, 289 Va. 303, 306-
07, 768 S.E.2d 684, 686 (2015). When a habeas court dismisses the petition based only upon a
review of the pleadings, we review the decision to dismiss the petition de novo. Id.
“Habeas corpus is a writ of inquiry granted to determine whether a person is illegally
detained.” Smyth v. Midgett, 199 Va. 727, 730, 101 S.E.2d 575, 578 (1958). Code § 8.01-
654(A)(1) provides that “[t]he writ of habeas corpus ad subjiciendum shall be granted forthwith
by the Supreme Court or any circuit court, to any person who shall apply for the same by
petition, showing by affidavits or other evidence probable cause to believe that he is detained
without lawful authority.” The statutory phrase “detained without lawful authority” allows a
petitioner to challenge the lawfulness of the entire duration of his or her detention so long as an
order entered in the petitioner’s favor will result in a court order that, on its face and standing
so, we have previously held that “while it is improper for an appellant to alter the wording of a
granted assignment of error, non-substantive changes to an assignment of error do not default the
issue raised.” Id. at 72 n.2, 758 S.E.2d at 232 n.2 (emphasis added) (quoting Northam v.
Virginia State Bar, 285 Va. 429, 434 n.*, 737 S.E.2d 905, 907 n.* (2013)). This is because non-
substantive alterations “do not permit the appellant to argue a different issue on appeal,” and thus
“we may properly consider [such] modified assignments of error.” Id.; see also, e.g., Hudson v.
Pillow, 261 Va. 296, 301-02, 541 S.E.2d 556, 560 (2001). Because the re-sequencing of the
language appearing in Escamilla’s second assignment of error is non-substantive, in that it does
not permit him to argue different issues in this appeal, it is not defaulted and we may properly
consider it.
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alone, will directly impact the duration of the petitioner’s confinement. Carroll v. Johnson, 278
Va. 683, 693, 685 S.E.2d 647, 652 (2009). Thus, for a Virginia court to exercise jurisdiction
over a habeas corpus petition, the Commonwealth must be the source of both the challenged
conviction and detention.
Detention is jurisdictional in habeas corpus, and therefore a prerequisite to any
consideration of a habeas petition. See Blair v. Peyton, 210 Va. 416, 417, 171 S.E.2d 690, 691
(1970). The detention requirement was historically interpreted strictly to mean actual physical
detention, but in modern times, this reading has been rejected. See Carroll, 278 Va. at 691-92,
685 S.E.2d at 651. Today we recognize that a petitioner is “detained” within the meaning of
Code § 8.01-654 so long as the sentence under attack has not been “fully served.” See Midgett,
199 Va. at 730, 101 S.E.2d at 578. A petitioner who enjoys physical freedom but remains
subject to a sentence not yet fully served, such as a suspended sentence, supervised parole, or
probation, is under detention. See, e.g. Code § 8.01-654(B)(3) (permitting habeas attacks to
suspended sentences). An individual is detained so long as he was sentenced to a term of
incarceration and the Commonwealth retains active power over him that could result in
immediate physical detention. E.C. v. Virginia Dep’t of Juvenile Justice, 283 Va. 522, 529, 722
S.E.2d 827, 830 (2012) (holding a petitioner was detained when he was on parole release from
juvenile detention); Zemene, 289 Va. at 309 n.4, 768 S.E.2d at 687 n.4 (holding a petitioner was
detained while serving a suspended sentence of twelve-months’ incarceration); see also Jones v.
Cunningham, 371 U.S. 236, 242 (1963) (explaining that constructive custody includes the
potential to be “rearrested at any time the [custodial authority] believes [the petitioner] has
violated a term or condition” of his suspended sentence and “be thrown back in jail to finish
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serving the allegedly invalid sentence with few, if any, of the procedural safeguards that
normally must be and are provided to those charged with crime”).
Jurisdiction for habeas proceedings must exist at the time the petition is filed. E.C., 283
Va. at 527-28, 722 S.E.2d at 829-30. The “scope of the inquiry is limited to the propriety of the
prisoner’s present detention.” Smyth v. Holland, 199 Va. 92, 97, 97 S.E.2d 745, 748 (1957)
(collecting authorities). Generally, this means that courts do not have jurisdiction to determine
the validity of a sentence under which the petitioner is not detained at the time he files the
petition. 5 Midgett, 199 Va. at 730, 101 S.E.2d at 578; see also Maleng v. Cook, 490 U.S. 488,
491 (1989) (holding that custody does not attach if the petition is brought when the sentence is
fully expired).
Here, Escamilla was not subject to actual or constructive detention for the conviction he
seeks to challenge through his habeas petition. Escamilla seeks to attack his 2003 petit larceny
conviction, but he completed his sentence for that crime in 2006, eight years prior to seeking
habeas relief in 2014. Although he was physically detained at the time he filed the habeas
petition, he was not detained by the Commonwealth for a violation of Virginia law. Rather, he
was detained by the federal government based upon federal law.
5
We have recognized a limited exception to this requirement. A petitioner currently
detained under a repeat offender statute may collaterally attack the validity of a fully served
sentence that is a basis for the current detention. See Wesley v. Commonwealth, 190 Va. 268, 56
S.E.2d. 362 (1949). This exception applies only to scenarios in which the Commonwealth
imposes enhanced punishment as a result of prior crimes.
Escamilla is not subject to such enhanced punishment because his challenged detention is
not additional punishment by the Commonwealth, but rather independent detention by the
federal government. As discussed below, ICE’s use of Escamilla’s prior conviction does not
come within the harm Wesley was intended to prevent − unjust confinement by the
Commonwealth as the direct result of an improper sentence enhancement by the Commonwealth.
6
Escamilla argues that his federal immigration detention was sufficient to satisfy the
detention required for a Virginia court to exercise jurisdiction under the Virginia habeas corpus
statute. However, detention imposed by any other jurisdiction as a result of a Virginia
conviction is a collateral consequence of that Virginia conviction. See Black’s Law Dictionary
369 (10th ed. 2014) (A collateral consequence is “the indirect implication of a criminal
conviction, esp. as it may affect the defendant’s immigration status, property forfeitures, civil
litigation posture, etc.”). We agree with the Court of Appeals of Virginia that “[d]eportation is a
collateral consequence of [a] criminal conviction because it arises through the efforts of an arm
of government over which the trial court has no control and which is not part of the underlying
criminal proceeding.” Zigta v. Commonwealth, 38 Va. App. 149, 155, 562 S.E.2d 347, 350
(2002). Indeed, “[i]f a person is in the actual custody of the United States for a violation of its
laws, no State can by habeas corpus, or any other process, take such person from the custody of
the federal tribunal or officer.” Bowling v. Commonwealth, 123 Va. 340, 343, 96 S.E. 739, 740
(1918); see also People v. Villa, 202 P.3d 427, 434 (Cal. 2009) (holding that unlike a suspended
sentence or parole, immigration detention “is directly traceable to applicable federal laws
governing immigration and to the discretion of federal immigration officials” and therefore does
not satisfy the state habeas custody requirement); People v. Carrera, 940 N.E.2d 1111, 1120 (Ill.
2010) (holding that “[b]ecause the state has nothing to do with defendant’s deportation, and has
no control over the actions of the INS, we cannot say that defendant’s possible deportation”
satisfies the custody requirement of the Illinois habeas statute); State v. Hernandez-Galarza, 864
N.W.2d 122, 135 (Iowa 2015) (holding that even if immigration detention “may be factually
traceable to . . . state criminal proceedings [the] restraint is entirely the product of federal
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immigration policy” and therefore cannot satisfy the custody requirement of Iowa’s habeas
statute).
“When a petitioner challenging the legality of his conviction continues to suffer a
concrete and continuing injury, which is a collateral consequence of the conviction, a case or
controversy remains and release from the sentence imposed does not render the case moot.”
E.C., 283 Va. at 531, 722 S.E.2d at 831. However, this holding did not alter the requirement that
the petitioner must have been detained as a result of the conviction he is challenging at the time
the petition is filed. Id. at 536, 722 S.E.2d at 834. In other words, although collateral
consequences can prevent a validly filed petition from becoming moot, they are not sufficient to
establish jurisdiction at the outset. Id.; see also Resendiz v. Kovensky, 416 F.3d 952, 956 (9th
Cir. 2005) (concluding that while collateral consequences could prevent a timely petition from
becoming moot after a petitioner is released from custody, “collateral consequences [do not]
satisfy the in custody requirement for a petition filed after the expiration of the state sentence”)
(citing Maleng, 490 U.S. at 492 (holding that a habeas petitioner does not remain “‘in custody’
under a conviction after the sentence imposed for it has fully expired, merely because of the
possibility that the prior conviction will be used to enhance the sentences imposed for any
subsequent crimes of which he is convicted”)).
Conclusion
Habeas corpus relief under Code § 8.01-654 is available only to those subject to the
actual or constructive detention of the Commonwealth as a result of the conviction they seek to
challenge. Federal immigration detention does not satisfy the detention requirement of Code
§ 8.01-654 because such detention is pursuant to the laws and authority of another sovereign.
Escamilla seeks habeas corpus relief concerning a 2003 conviction for petit larceny. Escamilla’s
8
sentence for that conviction expired in 2006, and his detention on that conviction ended with the
expiration of his sentence. Therefore, Escamilla was not unlawfully detained because of his
2003 Virginia conviction for petit larceny at the time he filed his habeas petition challenging that
conviction, and the judgment of the circuit court dismissing Escamilla’s petition for want of
jurisdiction must be affirmed. 6
Affirmed.
6
Given our ruling that the circuit court lacked jurisdiction to hear Escamilla’s habeas
petition, this Court need not address Escamilla’s remaining assignments of error.
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