Opinion
Alberto Noriega Perez, Petitioner, Pro se, Los Angeles, CA.
United States of America, Respondent: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Civil Division, Los Angeles, CA; Diana L Pauli, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Criminal Division - U.S. Courthouse, Los Angeles, CA; Patricia E Bruckner, LEAD ATTORNEY, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOHN E. MCDERMOTT, UNITED STATES MAGISTRATE JUDGE.
The Court submits this Report and Recommendation to the Honorable Stephen V. Wilson, United States District Judge, pursuant to 28 U.S.C. Section 636 and General Order 05-07 of the United States District Court for the Central District of California.
INTRODUCTION
On November 25, 2013, pro se Petitioner Alberto Noriega Perez (" Noriega" or " Petitioner") filed a petition for habeas corpus (" Petition"). (Docket Nos. 1 & 2.) On January 13, 2014, Respondent filed a motion to dismiss the Petition. (Docket No. 8.)
On February 10, 2014, Noriega filed an " Amendment to Habeas Corpus Filing Under 28 U.S.C. § 2241" (" February 10 Filing"). (Docket No. 9.) Respondent construed the February 10 Filing as a First Amended Petition and filed a motion to dismiss the First Amended Petition on March 3, 2014. (Docket No. 13.)
The February 10 Filing is titled " Amendment to Habeas Corpus Filing Under 28 U.S.C. § 2241" and includes newly asserted claims. (See, e.g., February 10 Filing at 1, 6 (seeking relief under 28 U.S.C. § 1651(a) for the first time).) Accordingly, Respondent properly construed the February 10 Filing as a First Amended Petition.
On April 2, 2014, the Court sua sponte extended the time for Noriega to file an opposition to Respondent's motion to dismiss the First Amended Petition from March 24, 2014, to April 16, 2014. (Docket No. 15.)
On April 3, 2014, Noriega filed an " Amendment to Writ of Error Habeas Corpus Filing Under 28 U.S.C. § 2241, 28 U.S.C. § 1651(a), Emergency Ex (sic) Party" (" April 3 Filing"). (Docket No. 16.) Respondent construed the April 3 Filing as a Second Amended Petition (" SAP") and filed a motion to dismiss the SAP on April 17, 2014 (" Motion"). (Docket No. 17.)
On April 17, 2014, Petitioner filed an " Answer to Government Opposition to Petitioners Writ of Error and Habeas Corpus Filing Under 28 U.S.C. § 2241 28 U.S.C. § 1651(a)" (" April 17 Filing"). The April 17 Filing, apparently Petitioner's opposition to Respondent's motion to dismiss the First Amended Petition, was stricken from the record on May 7, 2014, because it was rendered moot by the filing of the SAP (April 3 Filing) and Respondent's Motion to dismiss the SAP. (Docket No. 19; see Docket Nos. 16-17.)
Moreover, as stated in the Court's Order of May 7, 2014, although Petitioner asserts in the April 17 Filing that " his previous filing on April 3, 2014 was in part his answer to the government motion to dismiss" (April 17 Filing at 2), the April 3 Filing is labeled " Amendment to Writ of Error Habeas Corpus Filing Under 28 U.S.C. § 2241" and includes newly asserted claims. (See, e.g., April 3 Filing at 1, 7, 14 (asserting for the first time claims challenging Petitioner's removal in light of the planned termination of his retirement benefits by the Social Security Administration).) Accordingly, Respondent properly construed the April 3 Filing as a SAP.
On May 15, 2014, Petitioner filed his Opposition to Respondent's Motion. (Docket No. 20.) Respondent did not file a Reply.
The Motion is ready for decision. For the reasons discussed below, the Court recommends that the SAP be dismissed, without prejudice, for lack of jurisdiction.
Accordingly, any pending motion(s) must be DENIED as moot.
BACKGROUND
According to Respondent, Noriega is a native and citizen of Mexico. Noriega first entered the United States on June 24, 1960. (See Motion, Exh. 1.) Noriega was convicted in the United States District Court for the Southern District of California on one count of conspiracy to bring illegal aliens to the United States for financial gain (8 U.S.C. § 1324(a)(2)(B)(ii); 18 U.S.C. § 371), one count of conspiracy to harbor illegal aliens (8 U.S.C. § 1324(a)(1)(A)(iii), (v)(I)), eighteen counts of aiding and abetting bringing illegal aliens to the United States for financial gain (8 U.S.C. § 1324(a)(2)(B)(ii); 18 U.S.C. § 2), and eighteen counts of aiding and abetting harboring illegal aliens (8 U.S.C. § 1324(a)(1)(A)(iii); 18 U.S.C. § 2). (See United States of America v. Alberto Noriega-Perez, Case No. CR 06- 02268-JM, Docket No. 279.) The court sentenced Noriega to 60 months in prison on September 30, 2010. (See id.) According to Respondent, the Bureau of Immigration and Customs Enforcement (" ICE") initiated removal proceedings against Noriega and detained him in a detention facility in El Centro, California, during his proceedings. (Motion at 4.) An immigration judge subsequently ordered Noriega removed to Mexico pursuant to Immigration and Nationality Act, as amended, section 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony. (Docket No. 25 at Exhibit (" Exh.") A; see Motion, Exh. 1.) The Board of Immigration Appeals (" BIA") dismissed Petitioner's appeal of the immigration judge's removal order on October 7, 2013, rendering Petitioner's removal order administratively final. (Docket No. 25 at Exh. B); 8 U.S.C. § 1101(a)(47)(B)(i); Singh v. Gonzales, 499 F.3d 969, 976, 979 (9th Cir. 2007). ICE removed Noriega to Mexico on December 26, 2013. (Motion, Exh. 1.) Noriega is prohibited from entering, attempting to enter, or being in the United States at any time. (Id.)
On April 3, 2014, Petitioner filed the underlying SAP seeking relief pursuant to 28 U.S.C. § 2241 and 28 U.S.C. § 1651(a) in this Court. As best the Court can glean from the allegations in the SAP, Petitioner seeks to collaterally attack his final order of removal, his December 26, 2013, removal to Mexico, and matters related thereto. (SAP at 5-7, 13-16, 20.) Moreover, Petitioner appears to challenge both his underlying criminal conviction on various grounds, including challenges to the proceedings in the sentencing court and on direct appeal to the Ninth Circuit Court of Appeals and the United States Supreme Court, and his collateral proceedings pursuant to 28 U.S.C. § 2255 in the sentencing court. (SAP at 8-12, 17.) Petitioner apparently asks that this Court set aside his underlying criminal conviction (SAP at 13-15, 18-19), vacate his final order of removal (SAP at 14-15), and direct the government to allow Petitioner to return to the United States " immediate[ly]" . (SAP at 16, 19).
Respondent moves to dismiss the SAP on the basis of lack of subject matter jurisdiction and for failure to state a claim. First, Respondent argues the Court lacks jurisdiction under 28 U.S.C. § 2241 because Petitioner is not " in custody" following his removal to Mexico. (Motion at 4-7.) Second, Respondent contends that, under the immigration laws of the United States, this Court lacks jurisdiction over Petitioner's claims challenging his final order of removal, his December 26, 2013, removal to Mexico, and matters related thereto. (Motion at 7-10.) Finally, Respondent claims that Petitioner fails to satisfy the requirements for a writ of error coram nobis and the SAP must be dismissed for failure to state a claim for relief pursuant to 28 U.S.C. § 1651(a). (Motion at 10-13).
To the extent Respondent moves to dismiss allegations and claims which are not included in the SAP but are set forth only in Exhibit A to the SAP, which is a copy of a motion filed by Petitioner in immigration court, (see SAP at 7 (explaining that Exhibit A " is [Petitioner's] motion to immigration court")), the Court need not determine whether these claims are subject to dismissal, as Respondent contends, since Petitioner has not included them in his petition pending before this Court.
In the Motion, Respondent further argues that this Court lacks jurisdiction over Petitioner's challenge to the planned termination of his retirement benefits. (Motion at 13-16 (citing inter alia pages 7 and 14 of the SAP).) However, the Court does not construe Petitioner's allegations in the SAP as challenging the termination of his retirement benefits per se. Instead, Petitioner apparently argues that his habeas petition is not moot following his removal to Mexico because Petitioner is subject to collateral consequences, i.e., the termination of his retirement benefits (SAP at 7), and that his removal was improper and constituted cruel and unusual punishment by subjecting him to material deprivation, including the termination of his retirement benefits (SAP at 7, 14). In any event, even if Petitioner's allegations could be construed as a challenge to the termination of his retirement benefits, this habeas corpus and/or coram nobis action where the commissioner of social security is not a named defendant is not the proper forum for this type of relief. See 42 U.S.C. § 405(g); Butler v. Apfel, 144 F.3d 622, 624 (9th Cir. 1998) (noting that the Commissioner is the proper defendant in a claim under the Social Security Act); see also Fed.R.Civ.P. 20(a); Fed.R.Civ.P. 18(a); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Thus, any claim challenging the planned termination of Petitioner's retirement benefits would be subject to summary dismissal. See Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (" Rule 4") (" If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.")
DISCUSSION
I. THE COURT LACKS JURISDICTION OVER PETITIONER'S CLAIMS ALLEGING THAT HE WAS " ILLEGALLY REMOVED" TO MEXICO
The Court lacks jurisdiction to address Petitioner's claims that he was illegally removed to Mexico. On May 11, 2005, Congress enacted the REAL ID Act, Pub.L. No. 109- 13, Div. B., 119 Stat. 231, which stripped district courts of habeas jurisdiction over final orders of removal, and vested jurisdiction to review such orders exclusively in the courts of appeals. See 8 U.S.C. § 1252(a)(5). Specifically, section 1252(a)(5) provides:
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and section[] . . . 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter . . .
8 U.S.C. § 1252(a)(5). Moreover, under 8 U.S.C. § 1252(b)(9) -- also known as the " zipper clause" -- any " questions of law and fact" arising from an order of removal must be raised in a petition for review of that order. 8 U.S.C. § 1252(b)(9); Singh, 499 F.3d at 976, 978 (explaining that section 1252(b)(9) is known as the " zipper clause because it " consolidates or zips judicial review of immigration proceedings into one action in the court of appeals") (internal quotation marks omitted). Thus, the district court lacks jurisdiction over petitions that seek judicial review of " 'any questions of law and fact' arising from an order of removal." Morales-Izquierdo v. Dep't of Homeland Sec., 600 F.3d 1076, 1082 (9th Cir. 2010); see id. at 1082-83 (explaining that a claim arises from an order of removal when the alien cannot assert the claim without simultaneously challenging his removal order). Furthermore, under 8 U.S.C. § 1252(g), federal courts have no authority to review the Attorney General's decision or action to " commence proceedings, adjudicate cases, or execute removal orders." 8 U.S.C. § 1252(g).
However, the REAL ID Act's jurisdiction-stripping provision " does not apply to federal habeas corpus petitions that do not involve final orders of removal." Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006). " Therefore, in cases that do not involve a final order of removal, federal habeas corpus jurisdiction remains in the district court, and on appeal . . . pursuant to 28 U.S.C. § 2241." Id. at 1076.
In the SAP, Petitioner challenges his " illegal removal" to Mexico. As best the Court can glean from Petitioner's allegations, he states that his removal improperly barred his access to courts to challenge his underlying criminal conviction and/or removal to Mexico, including in this action that was pending when Petitioner was removed on December 26, 2013. (SAP at 5-7, 13-14, 16, 20 (alleging due process and equal protection violations).) Petitioner alleges that the government conspired to illegally remove him, apparently to prevent Petitioner from exposing government misconduct. (SAP at 5-8, 13-15, 17, 20.) In particular, he states that his removal without first giving him notice of the BIA's dismissal of his appeal was " designed to obstruct his access to the court." (SAP at 14.) Petitioner also states that Respondent moved to dismiss this action for lack of jurisdiction on the basis of " false" and " misleading" statements. (SAP at 6, 15.) Moreover, Petitioner claims that removal caused him to suffer material deprivation, including the loss of retirement and medical benefits. (SAP at 14-15 (alleging cruel and unusual punishment).) He requests that the Court vacate his final order of removal (SAP at 14-15), and " order [the government] to allow petitioner[] unobstructed access to this country" (SAP at 16; see id. at 19).
Petitioner also states that " [b]ecause the U.S. Attorney General and his lawyers have conspired to file false and misleading motions in this court, . . . [t]hey are in fact guilty of criminal contempt of this court and this court should put them in jail." (SAP at 15.) However, " a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973); see Diamond v. Charles, 476 U.S. 54, 64, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) (observing that a victim of a crime does not have a " judicially cognizable interest" in prosecuting an alleged criminal); Gomez v. City and County of San Francisco, 2005 WL 43869, *3 (N.D. Cal. 2005) (rejecting an access-to-courts claim based on plaintiff's allegation that she had a viable criminal case against the police officer but was deprived of her criminal remedy by the actions of the official who covered up the officer's criminal involvement); Marsh v. Kirschner, 31 F.Supp.2d 79, 81 (D. Conn. 1998) (" [T]here is no federal right to have criminal wrongdoers prosecuted."). Under California law, it is the district attorney who has the sole right to prosecute criminal charges. See Cal. Penal Code § 739. Accordingly, this claim is subject to summary dismissal. See Rule 4.
This Court lacks jurisdiction over Petitioner's claims that seek judicial review of a final order of removal, 8 U.S.C. § 1252(a)(5), " questions of law and fact" arising from a final order of removal, 8 U.S.C. § 1252(b)(9); see Singh, 499 F.3d at 977-78; see also Morales-Izquierdo, 600 F.3d at 1082-83, or " the decision or action" to " commence proceedings, adjudicate cases, or execute removal orders against" Petitioner. 8 U.S.C. § 1252(g); see Sadhvani v. Chertoff, 460 F.Supp.2d 114, 122 (D.D.C. 2006) (no jurisdiction pursuant to section 1252(g) over claim alleging violation of constitutional rights resulting from execution of removal order without notifying the BIA or the Department of Justice and while petitioner's motion to reopen the removal proceedings was still pending, because " [w]hatever legal label petitioner puts on them, these allegations are quite clearly causes or claims by or on behalf of an alien arising from the decision or action by the Attorney General to execute removal orders against that alien") (internal quotation marks, ellipses and brackets omitted). In other words, the SAP is subject to dismissal for lack of jurisdiction to the extent Petitioner claims he was " illegally removed" to Mexico.
Petitioner apparently also claims there was no final order of removal against him because the BIA failed to serve him notice of its decision and he was thus deprived of his right to appeal to the court of appeals. (SAP at 7.) A petitioner who contests the very existence of an order of removal does not seek " review of an order of removal" within the meaning of the REAL ID Act. Madu v. Att'y Gen., 470 F.3d 1362, 1366 (11th Cir. 2006); Kumarasamy v. Att'y Gen., 453 F.3d 169, 172 (3d Cir. 2006) (" Kumarasamy is not seeking review of an order of removal. Rather, he claims that his deportation was illegal because there was no order of removal.") (emphasis in original). However, to the extent Petitioner contests his removal on the ground that there was no final order of removal against him, his claim is patently frivolous and subject to summary dismissal. (See SAP at 7, 13, Exh. C (alleging that the BIA dismissed his appeal from the immigration judge's removal order on October 7, 2013)); Singh, 499 F.3d at 979 (" An order of removal becomes final upon the earlier of '(i) a determination by the [BIA] affirming such order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the [BIA].'") (quoting 8 U.S.C. § 1101(a)(47)(B)); see also Rule 4; Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
II. THE COURT LACKS JURISDICTION OVER PETITIONER'S CLAIMS CHALLENGING HIS UNDERLYING CRIMINAL CONVICTION
As noted above, Petitioner appears to challenge his underlying criminal conviction and/or sentence on various grounds in the SAP. (SAP at 8-12, 17.) A federal prisoner challenging the legality of his sentence generally must do so by a motion under 28 U.S.C. § 2255, filed in the sentencing court. 28 U.S.C. § 2255(a); see Harrison v. Ollison, 519 F.3d 952, 954 (9th Cir. 2008) (" A federal prisoner challenging the legality of a sentence must generally do so by a motion under 28 U.S.C. § 2255."); Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (" motions to contest the legality of a sentence must be filed under § 2255 in the sentencing court"). Here, although Petitioner has filed the current Petition as a habeas corpus petition pursuant to § 2241, to the extent he is actually challenging the legality of his underlying criminal conviction and/or sentence, these claims are more properly the subject of a motion brought under § 2255. See, e.g., United States v. 1982 Sanger 24' Spectra Boat, 738 F.2d 1043, 1046 (9th Cir. 1984) (moving party's label for motion is not controlling; court will construe motion to be the type proper for relief requested).
Petitioner states in his Opposition that he is " not making a collateral attack of his criminal conviction with his immigration detention case." (Opposition at 5 (stating: " They were to [sic] different issues as the government lawyer knows!").) Accordingly, the Court treats Petitioner's claims challenging his underlying criminal conviction as constituting an independent collateral attack in its own right.
Under the " savings clause" in § 2255, a federal prisoner may contest the legality of a sentence under § 2241 if he can demonstrate that the remedy available under § 2255 is " inadequate or ineffective to test the legality of his detention." United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (quoting § 2255); see also Hernandez, 204 F.3d at 864-65. The savings clause is a very narrow exception. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003). The remedy under section 2255 is not inadequate or ineffective merely because a prior § 2255 motion was denied or because a second § 2255 motion would be barred. See id.; see also Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000); Tripati v. Henman, 843 F.2d 1160, 1162-63 (9th Cir. 1988). A petitioner may invoke the savings clause only if he: " (1) makes a claim of actual innocence, and (2) has not had an 'unobstructed procedural shot' at presenting that claim." Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006) (citations omitted); see also Ivy, 328 F.3d at 1060. The burden is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). Here, Petitioner has provided no basis upon which this Court could conclude that section 2255 is either inadequate or ineffective. In particular, Petitioner's allegations of judicial bias against the trial judge (SAP at 10-11; Opposition at 6-7) do not render his section 2255 remedy inadequate or ineffective. See Tripati, 843 F.2d at 1163 (" appellant's section 2255 motion would not be 'inadequate or ineffective' because of alleged judicial bias"). As such, Petitioner cannot invoke the savings clause of section 2255 and section 2241 jurisdiction cannot be invoked.
Accordingly, to the extent Petitioner seeks habeas corpus relief and challenges the legality of his underlying criminal conviction and/or sentence, the pending action falls under § 2255 and not § 2241, and this Court lacks jurisdiction over these claims, which must be brought in the sentencing court in the Southern District of California. See supra; 28 U.S.C. § 2255(a) (jurisdiction over a § 2255 motion lies only in the sentencing court); Hernandez, 204 F.3d at 864.
Even if the Court construes the Petition as a section 2255 motion, transfer to the District Court for the Southern District of California in lieu of dismissal would not be appropriate. See Cruz-Aguilera v. INS, 245 F.3d 1070, 1074 (9th Cir. 2001) (transfer under 28 U.S.C. § 1631 is appropriate if " (1) the transferring court lacks jurisdiction; (2) the transferee court could have exercised jurisdiction at the time the action was filed; and (3) the transfer is in the interest of justice"). Even assuming Petitioner satisfies the " in custody" requirement for purposes of section 2255, Petitioner has already filed a section 2255 motion in the District Court for the Southern District of California, see United States of America v. Alberto Noriega-Perez, Case No. CR 06-02268-JM, Docket Nos. 328, 329, and he cannot bring another section 2255 motion unless he obtains certification from the Ninth Circuit to file a " second or successive" motion. United States v. Washington, 653 F.3d 1057, 1059 (9th Cir. 2011), cert. denied, 132 S.Ct. 1609, 182 L.Ed.2d 214 (2012). Since Petitioner has not obtained the required certification from the Ninth Circuit, the District Court for the Southern District of California would also lack jurisdiction over his section 2255 motion. See 28 U.S.C. § § 2244(a), (b)(3), 2255(h); Burton v. Stewart, 549 U.S. 147, 152-53, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) (per curiam); Cooper v. Calderon, 274 F.3d 1270, 1274-75 (9th Cir. 2001).
Finally, Petitioner's reliance on the All Writs Act, 28 U.S.C. § 1651(a), is misplaced. The All Writs Act provides that " all courts . . . may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). It is not itself a source of jurisdiction. Lights of America, Inc. v. United States District Court, 130 F.3d 1369, 1370 (9th Cir. 1997). Thus, to the extent the claims in the SAP challenging Petitioner's underlying criminal conviction and/or sentence can be construed as having been brought pursuant to a petition for a writ of error coram nobis (SAP at 1), this Court further lacks jurisdiction over these claims because a petition for a writ of error coram nobis must be brought in the sentencing court. Madigan v. Wells, 224 F.2d 577, 578 n. 2 (9th Cir. 1955).
To the extent the SAP can be construed as challenging Petitioner's prior criminal sentence for conspiracy to possess forged, counterfeit, and false immigration documents (18 U.S.C. § § 371, 1546) incurred in the United States District Court for the Southern District of California, see Noriega-Perez v. United States, 179 F.3d 1166, 1169 (9th Cir. 1999); (see Opposition at 4-5), the Court lacks jurisdiction over the SAP for the same reasons discussed above.
Accordingly, the SAP should be dismissed, without prejudice, for lack of jurisdiction. The Court need not reach Respondent's alternative arguments for dismissal.
To the extent Petitioner asserts any other claims for relief, these claims are vague and/or conclusory and subject to dismissal. See Rule 4; Hendricks, 908 F.2d at 491.
To the extent Petitioner purports to challenge his prior section 2255 proceedings in the United States District Court for the Southern District of California (SAP at 10-11), this Court lacks jurisdiction over Petitioner's claims. Pursuant to 28 U.S.C. § 1331, Congress has vested federal district courts with the power to exercise original, not appellate, jurisdiction over civil actions arising under the Constitution. See Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005).
RECOMMENDATION
THE COURT, THEREFORE, RECOMMENDS that the District Court issue an Order: (1) accepting this Report and Recommendation; (2) granting Respondent's motion to dismiss in part; and (3) directing that Judgment be entered dismissing this action in its entirety without prejudice for lack of jurisdiction.