Garcia v. Fasano

62 F. App'x 816

Opinion

MEMORANDUM

Footnotes

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Luis Rey Garcia appeals the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2241. We have jurisdiction under 28 U.S.C. § 2253 and we affirm.

We review a district court’s denial of a petition for a writ of habeas corpus de novo. Wade v. Terhune, 202 F.3d 1190, 1194 (9th Cir.2000). Garcia is not eligible for INA § 212(c), 8 U.S.C. § 1182(c), relief because Garcia did not plead guilty. Garcia proceeded to trial and was convicted by a jury. See Amendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121-22 (9th Cir.2002) (holding that § 212(c) relief under St. Cyr is not available to a defendant convicted by a jury) (citing INS v. St. Cyr, 533 U.S. 289, 321-22, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)).

The fact that Garcia did not receive a plea bargain offer does not alter our application of Amendariz-Montoya. See United States v. Estrada-Plata, 57 F.3d 757, 760 (9th Cir.1995) (explaining the decision to offer a plea bargain is a matter of prosecutorial discretion). Nor is a motion to reduce a conviction from murder to voluntary manslaughter the functional equivalent of a plea bargain. Because Garcia had already been convicted by a jury for second degree murder, Garcia stood only to gain from his motion. See Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 602 (9th Cir.2002) (“A plea bargain is a formal exchange in which each side consensually gives, and gets, something of value.”).

Garcia waived his INA § 212(h), 8 U.S.C. § 1182(h), equal protection challenge for purposes of appellate review by failing to raise it before the district court. See Arizona v. Components Inc., 66 F.3d 213, 217 (9th Cir.1995).

The judgment of the district court is AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.