Mainali v. Virginia

873 F. Supp. 2d 748, 2012 U.S. Dist. LEXIS 89168, 2012 WL 2619132
CourtDistrict Court, E.D. Virginia
DecidedJune 25, 2012
DocketCivil Action No. 1:11cv1215
StatusPublished
Cited by19 cases

This text of 873 F. Supp. 2d 748 (Mainali v. Virginia) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mainali v. Virginia, 873 F. Supp. 2d 748, 2012 U.S. Dist. LEXIS 89168, 2012 WL 2619132 (E.D. Va. 2012).

Opinion

ORDER

T.S. ELLIS, III, District Judge.

In this counseled petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, petitioner, a legal permanent resident and citizen of Nepal, seeks relief from a 2008 state conviction for attempted sexual battery, in violation of Va.Code § 18.2-67.5(c). The record reflects that petitioner pled guilty and thus was convicted of this charge in Prince William County Circuit Court on September 18, 2008. On the same date, petitioner was sentenced to eleven months imprisonment, with all eleven months suspended, and one year of supervised probation. Petitioner’s one-year term of supervised probation commenced immediately on the date of sentencing and thereafter proceeded, presumably without incident, until its expiration in September 2009.

As it happens, petitioner’s conviction for attempted sexual battery rendered him removable from the United States pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. Removal proceedings were therefore initiated against petitioner by the Department of Homeland Security on March 4, 2010, approximately six months after his term of supervised probation expired on the state conviction now under attack. It appears from the record that petitioner is not currently being held in immigration custody, but instead remains released on bond pending a final removal determination by the Immigration Court.

[750]*750It is undisputed that petitioner does not herein seek review of the ongoing removal proceedings pending against him in Immigration Court. Rather, petitioner requests in the instant habeas petition an order vacating his 2008 state conviction for attempted sexual battery, which conviction prompted initiation of the removal proceedings. In support thereof, petitioner raises a single claim, namely that he received constitutionally ineffective assistance of counsel during the course of the proceedings that resulted in the state conviction, in violation of the Sixth Amendment as elucidated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Pet. at 10 (expressly providing that petitioner “has one claim: that his Prince William County conviction ... was obtained in violation of his rights under the Sixth Amendment to the United States Constitution”) (emphasis added). In this regard, petitioner claims that his state court attorney failed to advise him generally of the potential immigration consequences of pleading guilty to a criminal charge, and specifically that his guilty plea and resulting state conviction on the charge of attempted sexual battery could be grounds for removal from the United States. See Padilla v. Kentucky, 559 U.S. -, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010) (holding essentially that “counsel must inform her client whether his plea carries a risk of deportation” in order to satisfy a defendant’s Sixth Amendment right to effective assistance of counsel).

Respondents’ threshold motion to dismiss raises multiple jurisdictional and procedural arguments, the first of which is dispositive here. Indeed, at the outset, respondents1 argue that petitioner is unable to meet the jurisdictional requirements of § 2254 because the state conviction he now seeks to vacate expired in 2009, more than two years before the instant petition was filed in 2011. For the reasons that follow, respondents’ motion must be granted and petitioner’s request for relief pursuant to § 2254 must be dismissed for lack of jurisdiction.

Analysis of this jurisdictional question properly begins with the language of § 2254 itself, which provides, in pertinent part, that “a district court shall entertain 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.” 28 U.S.C. § 2254(a) (emphasis added). The Supreme Court has made unmistakably clear that a § 2254 petitioner must, at the time his or her petition is filed, be “in custody” pursuant to the contested state conviction or sentence. Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (citing Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968)). It is equally clear that § 2254’s requirement that a habeas petitioner be “in custody” pursuant to the contested state conviction raises a threshold jurisdictional question. Id. at 490, 109 S.Ct. 1923 (stating that “[t]he federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are ‘in custody in violation of the Constitution or laws or treaties of the United States’ ”) (emphasis in original).2

[751]*751Of course, to meet the jurisdictional “in custody” requirement, a § 2254 petitioner need not be in actual physical custody of state authorities at the time a habeas petition is filed. Thus, it is well-settled that an ongoing term of probation or parole is a sufficient restraint on a petitioner’s liberty to allow the petitioner to attack a state sentence on constitutional grounds pursuant to § 2254. See, e.g., Jones v. Cunningham, 371 U.S. 236, 242, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (holding that a prisoner who had been placed on parole was still “in custody” under an unexpired state sentence for habeas purposes because the petitioner’s release from physical confinement was not unconditional and “the custody and control of the Parole Board involves significant restraints on petitioner’s liberty”). But it is equally well-settled that “[o]nce the sentence imposed for a conviction has completely expired, the collateral consequences of that 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. 1923 (emphasis added).3 And significantly, one such category of “collateral consequences” of a state conviction are those related to immigration proceedings initiated and pursued by the Department of Homeland Security, as involved in the instant case.4

Accordingly, given that immigration proceedings fall squarely within Maleng’s definition of “collateral consequences” of a state conviction, it necessarily follows that a habeas petitioner is unable to meet the jurisdictional “in custody” requirement of § 2254 where, as here, the petitioner is involved in ongoing [752]*752immigration proceedings as a result of a state conviction that had already fully expired at the time the habeas petition was filed. Although the Fourth Circuit has not yet directly addressed this precise issue, the conclusion reached here is nonetheless consistent with numerous decisions from other circuits and district courts alike.5

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Bluebook (online)
873 F. Supp. 2d 748, 2012 U.S. Dist. LEXIS 89168, 2012 WL 2619132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mainali-v-virginia-vaed-2012.