Resendiz v. Kovensky

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUGO RANGEL RESENDIZ, 
Petitioner-Appellant,
No. 03-55136
v.
LEONARD KOVENSKY, Acting  D.C. No.
CV-02-00104-PA
Director, Immigration and
OPINION
Naturalization Service,
Respondent-Appellee.

Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted
April 8, 2005—Pasadena, California
Filed June 27, 2005
Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,
and Stephen S. Trott, Circuit Judges.
Opinion by Judge Trott
7609
7612 RESENDIZ v. KOVENSKY
COUNSEL
Phillip A. Trevino, Los Angeles, California, for the petitioner-
appellant.
Frank M. Travieso, Assistant United States Attorney, Los
Angeles, California, for the respondent-appellee.
OPINION
TROTT, Circuit Judge:
OVERVIEW
Hugo Rangel Resendiz appeals the district court’s dismissal
of two petitions for habeas corpus — one under 28 U.S.C.
§ 2254, naming the State of California as the respondent, and
a second under 28 U.S.C. § 2241 against the Bureau of Immi-
gration and Naturalization Service (“INS).1 We have jurisdic-
tion pursuant to 28 U.S.C. § 2253.
We conclude that (1) Resendiz was not “in custody pursu-
ant to the judgment of a State court” when he filed his § 2254
petition, and he is not entitled to an exception from the in cus-
tody requirement; (2) the district court did not err in constru-
ing Resendiz’s § 2254 petition as a petition against the INS
under § 2241 rather than as one for a writ of coram nobis; and
1
On March 1, 2003, the detention and removal duties of the INS were
transferred to the newly-formed Bureau of Immigration and Customs
Enforcement. 116 Stat. 2135, Pub. L. 107-296 § 441 (2002). Because the
INS was the operative agency at the time of the events in this case, we
refer to the relevant agency as “the INS” for ease of reference.
RESENDIZ v. KOVENSKY 7613
(3) the enactments of the Antiterrorism and Effective Death
Penalty Act (AEDPA) and the Illegal Immigration Reform
and Immigrant Responsibility Act (IIRIRA) do not change the
long standing principle that a petitioner may not collaterally
attack his state court conviction in a § 2241 petition against
the INS. Accordingly, we affirm.
BACKGROUND
Resendiz was a lawful permanent resident when he pled
guilty to narcotics offenses in the Orange County Superior
Court on June 30, 1997. In re Resendiz, 25 Cal. 4th 230, 235
(2001). Resendiz claims that before entering his plea, he
expressed concern to his attorney, Leonard Basinger, about
losing his green card as a result of the offense. Basinger inac-
curately informed Resendiz that the guilty plea would not
adversely affect his immigration status. The state court judge
informed Resendiz and five other defendants that their con-
victions could result in deportation, but Resendiz nevertheless
took Basinger’s erroneous advice and pled guilty. See id. at
235-37.
As a result of his plea, the state trial court sentenced
Resendiz to 180 days imprisonment and three years probation,
with credit for time served. In addition, California Health and
Safety Code section 11590 required Resendiz to register as a
narcotics offender for a period of five years subsequent to the
completion of his three year probation term.
While Resendiz was serving his state sentence, the INS
served him with a Notice to Appear, which declared that he
was a removable alien due to his conviction for a narcotics
offense, which qualified as an aggravated felony under 8
U.S.C. § 1227 (a)(2)(B)(i) and (a)(2)(A)(iii). Consequently,
on a date not clear from the record, Resendiz was transferred
to INS custody at the completion of his 180 days in state cus-
tody. Id. at 236.
7614 RESENDIZ v. KOVENSKY
While in INS custody and represented by new counsel,
Resendiz began pursuing state court relief on the grounds that
Basinger provided ineffective assistance of counsel in viola-
tion of the Sixth Amendment by telling Resendiz that his
guilty plea would not affect his immigration status. Id.Resendiz’s state remedies remained unexhausted until April 2,
2001, when the California Supreme Court issued its decision.
Id. The state court concluded that even assuming Basinger’s
performance was constitutionally deficient, Resendiz failed to
show prejudice because he failed to show that he would have
proceeded to trial absent the erroneous advice. Id. at 252-54.
By the time the state court issued its final decision,
Resendiz’s state sentence of 180 days and 3 years probation,
imposed in 1997, had long since expired.
Nevertheless, Resendiz filed a § 2254 habeas petition in the
district court in February of 2002, naming the State as respon-
dent. The district court dismissed the petition because
Resendiz was no longer “in custody pursuant to the judgment
of a State court.” Because Resendiz was in INS custody, how-
ever, the court construed the petition as a § 2241 petition and
granted Resendiz leave to amend to allow him to name the
Director of the INS as the proper respondent. Resendiz
objected to the construction of his petition as a § 2241 peti-
tion, arguing that the State was the proper respondent. After
objecting, Resendiz amended the petition, naming the INS as
the respondent, but he continued to assert that the ineffective
assistance of counsel during the state proceedings provided
grounds for relief.
Sympathizing with Resendiz’s unfortunate procedural situ-
ation, the district court nonetheless concluded that it lacked
jurisdiction over the § 2241 petition and reaffirmed its earlier
decision to dismiss the § 2254 petition. The court determined
that, pursuant to our decision in Contreras v. Schiltgen, 122
F.3d 30 (9th Cir. 1997), aff’d on add’l grounds in Contreras
v. Schiltgen, 151 F.3d 906 (9th Cir. 1998) (Contreras II), the
state conviction could not be collaterally attacked in a § 2241
RESENDIZ v. KOVENSKY 7615
petition against the INS, and that Resendiz’s petition thus pro-
vided no grounds for relief. Moreover, the district court con-
cluded that because Resendiz was no longer in custody
pursuant to the state court judgment, it lacked jurisdiction
over the § 2254 petition that otherwise would have been avail-
able to attack the state conviction. Thus, Resendiz was with-
out federal review.
We granted a certificate of appealability on two issues: (1)
whether Resendiz’s pending deportation on the grounds of his
state conviction can be construed as “custody pursuant to the
judgment of a State court,” and (2) whether the district court
erred in construing Resendiz’s § 2254 petition as a proceeding
against the INS under § 2241. Resendiz briefed additional,
related issues here and requests that we broaden the certificate
of appealability. We address each of his contentions in turn.
DISCUSSION
A. Standard of Review
We review the district court’s dismissal of a petition for a
writ of habeas corpus de novo. Hunt v. Pliler, 384 F.3d 1118,
1123 (9th Cir. 2004).
B. Analysis
Resendiz makes five arguments in his attempt to secure
elusive federal review: (1) that he satisfies § 2254’s “in cus-
tody pursuant to the judgment of a state court” requirement
because his transfer to INS custody, after serving a state sen-
tence for a drug trafficking crime, was the direct and manda-
tory consequence of the state court judgment; (2) that
California’s mandatory narcotics offender registration law sat-
isfies the “in custody” requirement of § 2254; (3) that he is
entitled to an exception from the “in custody” requirement of
§ 2254; (4) that the district court erred in construing the
§ 2254 petition as a petition against the INS under § 2241 and
7616 RESENDIZ v. KOVENSKY
should have construed it as a petition for a writ of coram
nobis; and (5) that we should revisit the holding of Contreras
and conclude that the state court conviction may be collater-
ally attacked through his § 2241 petition.
1. Custody Requirement of § 2254
[1] Pursuant to 28 U.S.C. § 2254(a), “[t]he Supreme Court,
a Justice thereof, a circuit judge, or a district court shall enter-
tain an application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.” (empha-
sis added). This “in custody” requirement has been interpreted
to mean that federal courts lack jurisdiction over habeas cor-
pus petitions unless the petitioner is “under the conviction or
sentence under attack at the time his petition is filed.” Maleng
v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam).
[2] It is well-established that “once the sentence imposed
for a conviction has completely expired, the collateral conse-
quences of the conviction are not themselves sufficient to ren-
der an individual ‘in custody’ for the purposes of a habeas
attack upon it.” Id. at 492 (emphasis added); Feldman v. Per-
rill, 902 F.2d 1445 (9th Cir. 1990) (interpreting Maleng and
concluding that under Maleng, even when collateral conse-
quences significantly harm habeas petitioners, the harm is not
the relevant “in custody” inquiry). Immigration consequences,
such as deportation, have long been viewed as “collateral,”
and thus are not themselves sufficient to render an individual
“in custody.” See Fruchtman v. Kenton, 531 F.2d 946, 949
(9th Cir. 1976) (holding that immigration consequences —
deportation — of a criminal conviction are collateral conse-
quences because “the consequence in issue ‘was not the sen-
tence of the court which accepted the plea but of another
agency over which the trial judge has no control and for
which he has no responsibility’ ” (citation omitted)). While
Maleng noted that collateral consequences could prevent a
RESENDIZ v. KOVENSKY 7617
petition — filed while the petitioner was in state custody —
from becoming moot after a petitioner is released from cus-
tody, Maleng foreclosed any argument that collateral conse-
quences could satisfy the in custody requirement for a petition
filed after the expiration of the state sentence. See 490 U.S.
at 492.
Recognizing that collateral consequences are insufficient,
Resendiz argues that immigration consequences can no longer
be considered collateral. He points out that the AEDPA and
IIRIRA eliminated the small amount of discretion in the
Executive and Judicial Branches when dealing with individu-
als convicted of the offenses for which Resendiz was con-
victed. This change, he contends, renders immigration
consequences “direct and mandatory” rather than “collateral.”
Thus, he contends that the immigration consequences should
now be considered sufficient to render him “in custody pursu-
ant to the judgment of a State court.”
[3] Contrary to Resendiz’s assertion, immigration conse-
quences of a state conviction continue to be collateral. As
originally stated in Fruchtman, these consequences arise from
the action of an independent agency — indeed, in the case of
a state conviction, an independent sovereign — and are conse-
quences over which the state trial judge has no control what-
soever. See United States v. Amador-Leal, 276 F.3d 511, 515-
16 (9th Cir. 2002) (holding that Fruchtman remains good law
post-AEDPA and post-IIRIRA).
We explained in Amador-Leal: “whether an alien will be
removed is still [after AEDPA and IIRIRA] up to the INS.
There is a process to go through, and it is wholly independent
of the court imposing the sentence . . . . Removal is not part
of the sentence.” Id. at 516 (emphasis added). Extending that
holding, we have similarly concluded that, because immigra-
tion consequences remain collateral, the failure of counsel to
advise his client of the potential immigration consequences of
a conviction does not violate the Sixth Amendment right to
7618 RESENDIZ v. KOVENSKY
effective assistance of counsel. United States v. Fry, 322 F.3d
1198, 1200-01 (9th Cir. 2003).
Resendiz claims that Amador-Leal and Fry are inapposite
because the conclusion that immigration consequences remain
collateral post-AEDPA and post-IIRIRA was not made in the
context of an “in custody” determination. This is a distinction
without a difference, and we see no reason why the rationale
of Amador-Leal and Fry does not apply with equal force here.
Nothing about an “in custody” determination would change
the rationale of those cases, namely that the immigration con-
sequences are the result of an independent agency, not part of
the state sentence.
The Tenth Circuit’s decision in a factually similar case,
Broomes v. Ashcroft, 358 F.3d 1251 (10th Cir. 2004), bolsters
our conclusion. Like Resendiz, the petitioner in Broomes,
Asfaw Abtew, claimed that his trial counsel in a state court
proceeding failed to inform him of the immigration conse-
quences of a guilty plea. Id. at 1253. Relying on a number of
cases, including Maleng and our prior decision in Contreras,
the Tenth Circuit held that Abtew was not “in custody pursu-
ant to the judgment of a State court” because, like Resendiz,
Abtew’s state sentence had fully expired. Id. at 1255-56. Fur-
thermore, with respect to a second petitioner in that case, the
Tenth Circuit concluded, as we did in Amador-Leal and Fry,
that the AEDPA and IIRIRA “did not alter the collateral
nature of deportation to a criminal proceeding.” Id. at 1256.
Finally, Resendiz contends that Poodry v. Tonawanda
Band of Seneca Indians, 85 F.3d 874 (2d Cir. 1996), supports
his position. Poodry is inapplicable. In Poodry, the Second
Circuit applied ordinary habeas corpus principles and con-
cluded that an Indian tribe member who had been sentenced
by the tribe to permanent tribal banishment was “in custody.”
Id. at 893-95. The court held that the threat of banishment by
the tribe was a severe restraint on liberty, and thus, federal
habeas corpus review was appropriate. Id.RESENDIZ v. KOVENSKY 7619
The holding in Poodry is not at all remarkable, nor does it
help Resendiz. The Poodry court examined the act of a single
sovereign (the tribe), and determined that the severe restraint
imposed by the threat of banishment was enough to put the
petitioner in custody pursuant to that sovereign’s judgment.
The holding mirrors the principle that an alien subject to an
order of deportation by the INS may seek habeas relief under
§ 2241 alleging unlawful detention by the INS, because that
order is a severe restraint on his liberty. See, e.g., INS v. St.
Cyr, 533 U.S. 289, 308-14 (2001) (holding that jurisdiction to
challenge an order of deportation remains under § 2241 post-
AEDPA and post-IIRIRA).
[4] The material difference between cases such as Poodry
and St. Cyr and Resendiz’s case is that, severe consequences
notwithstanding, two independent agencies (indeed, sover-
eigns) are operating here. The state’s action is entirely inde-
pendent of the INS’s action initiating deportation proceedings,
and the state has nothing to do with deportation. Thus, while
Resendiz is indeed threatened with banishment, it is not a
threat imposed by the state court, and there is nothing unlaw-
ful about the INS detention.
[5] Consequently, we must reject Resendiz’s argument that
the immigration consequences of his state conviction render
him “in custody pursuant to the judgment of a State court” for
purposes of § 2254.
2. Narcotics Offender Registration
Resendiz contends that the requirement that he register for
five years as a narcotics offender renders him “in custody”
pursuant to the state court judgment for purposes of § 2254
because (1) the restriction is one not shared by the public gen-
erally, and (2) it is a punishment. See Williamson, 151 F.3d
at 1182 (citing Jones v. Cunningham, 371 U.S. 236, 240
(1963)) (explaining that whether a petitioner is “in custody”
7620 RESENDIZ v. KOVENSKY
depends on whether he is subject to a restraint “not shared by
the public generally”). His contentions fail.
California Health and Safety Code section 11590 provides
in relevant part that:
any person who is convicted in the State of Califor-
nia of [one of several enumerated narcotics offenses]
. . . shall within 30 days of his or her coming into
any county or city, or city and county in which he or
she resides or is temporarily domiciled for that
length of time, register with the chief of police of the
city in which he or she resides or the sheriff of the
county if he or she resides in an unincorporated area.
The “registration” requires that the person give
a statement in writing signed by such person, giving
such information as may be required by the Depart-
ment of Justice, and . . . the fingerprints and photo-
graph of such person. . . . If any person required to
register hereunder changes his residence address he
shall inform, in writing within 10 days, the law
enforcement agency with whom he last registered of
his new address.
Cal. Health & Safety Code § 11594.
Initially, to the extent that he relies on the punitive nature
of the statute as a reason to satisfy the custody requirement,
Resendiz’s claim that this statute is punitive in nature is
wrong. The California case he cites for that proposition, Peo-
ple v. Villela, 30 Cal. App. 4th 54, 60 (1994), applied the
analysis outlined by In re Reed, 33 Cal. 3d 914 (1983), and
did indeed conclude that the narcotics registration statute was
punitive in nature. However, the California Supreme Court
disapproved of the Reed analysis in People v. Catellanos, 21
Cal. 4th 785, 797-99 (1999), shattering Villela’s conclusion
RESENDIZ v. KOVENSKY 7621
that the narcotics registration law is punitive. In re Luisa Z.,
78 Cal. App. 4th 978 (2000), on the other hand, remains good
law, and concluded that the narcotics registration statute at
issue is not punitive in nature. Id. at 983.
[6] Resendiz’s argument that the registration requirement
renders him in custody because it is a restriction not shared
generally by the public also fails. We have held previously
that several states’ sexual offender registration laws do not
render a habeas petitioner “in custody” because they are a col-
lateral consequence of conviction that do not impose a severe
restraint on an individual’s liberty. See Henry v. Lungren, 164
F.3d 1240, 1242 (9th Cir. 1999) (holding that California sex-
ual offender registration laws do not render registrant “in cus-
tody”); McNab v. Kok, 170 F.3d 1246 (9th Cir. 1999) (holding
the same with respect to Oregon sexual offender laws); Wil-
liamson v. Gregoire, 151 F.3d 1180, 1182-84 (9th Cir. 1998)
(holding the same with respect to Washington sexual offender
laws).
There is no material difference between such laws and the
narcotics offender law at issue here to command a different
result. Indeed, the narcotics offender laws create far less
restraint than do the sexual offender registration laws. While
the sexual offenders in the cases cited above are required to
report within twenty-four hours of moving, a narcotics
offender under section 11590 has thirty days before he must
comply with the registration requirement. Similarly, sex
offenders are required to register for life whereas a narcotics
offender must report for only five years. Finally, the failure to
register as a narcotics offender may result in a misdemeanor
while a sex offender’s failure to register may result in either
a felony or misdemeanor conviction. Compare Cal. Health &
Safety Code § 11594 with Cal. Penal Code § 290.
[7] Given that these sexual offender registration laws do
not render an individual “in custody,” despite their stringent
7622 RESENDIZ v. KOVENSKY
requirements, we see no reason to treat the far less restrictive
narcotics offender registration laws any differently.
3. Exceptions to In Custody Requirement
[8] The Supreme Court has identified two possible excep-
tions to the “in custody” requirement, neither of which apply
here. The first is a Gideon2 violation, or a complete failure of
counsel. Custis v. United States, 511 U.S. 485, 494-96 (1994).
That exception is concededly not present here. The second,
which Resendiz asserts, is a possible “rare” exception, not yet
defined, where “no channel of review was actually available
to a defendant with respect to a prior conviction.” Daniels v.
United States, 532 U.S. 374, 383 (2001); see also Johnson v.
United States, 544 U.S. ___, slip op. at 7 and n.4 (2005) (stat-
ing that the Court has recognized “only one exception,” the
Gideon exception, to the general prohibition on collateral
attacks and declining to explore the possible “rare” second
exception).
[9] To the extent that this rare exception may exist, the
Court has suggested that it might be present where “a state
court . . . without justification, refuse[s] to rule on a constitu-
tional claim that has been presented to it” or where a defen-
dant “obtain[s] compelling evidence that he is actually
innocent.” Lackawanna County Dist. Atty. v. Coss, 532 U.S.
394, 405 (2001). There has been no suggestion that an excep-
tion exists where, as here, channels for review not only
existed, but also were pursued. In other words, although
Resendiz has no federal channel of review, it is quite clear
that he has had and availed himself of several channels of
state review. See In re Resendiz, 25 Cal. 4th at 236-38 (can-
vassing the paths of review Resendiz sought in state court).
Thus, Resendiz is not entitled to an exception from the “in
custody” requirement.
2
Gideon v. Wainwright, 372 U.S. 335 (1963).
RESENDIZ v. KOVENSKY 7623
4. Writ of Coram Nobis
Resendiz argues that the district court should not have con-
strued his petition as one under § 2241, but instead should
have construed it as a writ of coram nobis, even though
Resendiz never asked the court to do so. Because Resendiz
did not contend below that his petition should be construed as
a writ of coram nobis, and because he provides no authority
suggesting that the district court might have a duty to sua
sponte raise the issue, we decline to address this claim. Whit-
taker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir.
1992) (“As a general rule, an appellate court will not hear an
issue raised for the first time on appeal.”).3
5. Collateral Attack of State Court Judgment
Finally, Resendiz contends, for the first time, that Contr-
eras and Contreras II are not controlling post-AEDPA. He
urges us to revisit the holding of Contreras and conclude that
in a § 2241 petition, a petitioner may collaterally attack the
state court conviction that forms the basis for INS custody.
Resendiz recognizes that a three-judge panel ordinarily may
not overturn a prior Ninth Circuit decision, but urges us to do
so in light of intervening changes in the law, i.e., the AEDPA.
The facts of Contreras are indistinguishable from the
instant case: the petitioner in Contreras pled no contest to a
crime that would result in deportation. He later claimed that
his counsel provided ineffective assistance, rendering his plea
involuntary. However, like Resendiz, Contreras had com-
pleted his state sentence by the time his state remedies were
exhausted. Contreras, 122 F.3d at 31-32.
3
Our recent decision in United States v. Kwan, No. 03-50315, 2005 WL
1119652 (9th Cir. May 12, 2005), in which we held that coram nobis relief
was available under similar circumstances, does not affect our decision.
Unlike Kwan, Resendiz did not petition the district court for the writ of
coram nobis, but argued instead that the court should have so construed
his habeas petition sua sponte.
7624 RESENDIZ v. KOVENSKY
[10] In Contreras, and in this case as well, “[t]he fact of
[petitioner’s state] conviction is sufficient basis for the INS to
detain him.” Id. at 32. Consequently, in Contreras, “there
[was] nothing unlawful about the INS’ holding Contreras in
custody.” Id. Accordingly, we held that, because the INS had
neither the authority nor the competence to inquire into the
facts of the conviction, no collateral attack was permissible.
Id.[11] Nothing in the AEDPA or IIRIRA serves to undermine
the holding of Contreras. The long-standing prohibition on
collateral attack is premised on a need for finality. See, e.g.,
Lackawanna, 532 U.S. at 403 (explaining the reasons why
collateral attack is prohibited: preserving the integrity of the
judgment and ease of administration). The Supreme Court
recently reaffirmed this principle in Johnson, 544 U.S. ___,
slip op. at 7. Indeed, the Court concluded that the AEDPA’s
principal purposes — a need for finality — would be thwarted
“by maximizing the time that judgments are open to ques-
tion.” Id. at slip op. 11.
[12] Given this principle inherent in the AEDPA, courts
continue to cite Contreras with approval, apply the cases
upon which Contreras relied, and reach the same conclusion
in the post-AEDPA context. See Broomes, 358 F.3d at 1255(concluding, in a post-AEDPA petition, that petitioner could
not collaterally attack his state court conviction in a § 2241
petition against the INS); Drakes v. INS, 330 F.3d 600, 605
(3rd Cir. 2003) (applying Daniels and Lackawanna and con-
cluding that a post-AEDPA § 2241 petition could not collater-
ally attack an underlying state conviction). Accordingly, we
adhere to the holding of Contreras and affirm the district
court’s conclusion that Resendiz may not collaterally attack
his state conviction in a habeas petition against the INS under
§ 2241.
CONCLUSION
For the reasons discussed, we conclude that (1) Resendiz
was not “in custody pursuant to the judgment of a State court”
RESENDIZ v. KOVENSKY 7625
for purposes of 28 U.S.C. § 2254; (2) that he is not entitled
to an exception from this requirement; and (3) that the district
court did not err in construing Resendiz’s petition as one aris-
ing under 28 U.S.C. § 2241. Finally, we reaffirm post-
AEDPA the holding of Contreras and Contreras II.
AFFIRMED.