                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                          JUN 19 2003
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 VINCENTE EMILIO MESA-
 ECHEVARRIA,

            Plaintiff - Appellant,                       No. 02-1374
 v.                                                  (D.C. No. 02-Z-1265)
                                                           (D. Colo.)
 IMMIGRATION AND
 NATURALIZATION SERVICE,

            Respondent - Appellee.


                               ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges. **


        Mr. Mesa-Echevarria, in federal custody and appearing pro se, appeals from

the district court’s dismissal of his habeas corpus petition pursuant to 28 U.S.C. §

2241.

        Mr. Mesa-Echevarria, a Cuban citizen, is in the custody of the Immigration



        This order and judgment is not binding precedent, except under the
        *

doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

         After examining the briefs and the appellate record, this three-judge
        **

panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
and Naturalization Service (“INS”) in Colorado. The record indicates that he was

paroled into this country in 1980 for emergent and humanitarian reasons. He was

convicted in a New York state court of first-degree assault (intentionally causing

serious physical injury by means of a sharp instrument) on January 27, 1983, and

was sentenced to five to fifteen years imprisonment. The conviction was affirmed

by the Appellate Division on September 13, 1984. On July 19, 1995, he was

placed in the custody of the INS and was ordered deported based on the

conviction. See 8 U.S.C. § 1182(a)(2)(A)(i)(I) (1995) (exclusion based upon

crime of moral turpitude).

      In his habeas petition and in this appeal, Mr. Mesa-Echevarria contests his

now expired state conviction claiming that exculpatory evidence was not

submitted to the grand jury or at trial, ineffective assistance of counsel, collusion

between the judge and the prosecutor, and lack of due process. We agree with the

district court that we lack jurisidiction under § 2241. R. Doc. 3. We note that

Mr. Mesa-Echevarria does not contest the fact of his counseled conviction. See

Contreras v. Schiltgen, 122 F.3d 30, 32 (9th Cir. 1997), on reh’g, 151 F.3d 906,

907 (9th Cir. 1998) (“[W]e must hold that when a habeas petition [under § 2241]

attacks the use of a prior conviction as a basis for INS custody, and the prior

sentence has expired, federal habeas review is limited. When the federal

proceeding is governed by statutes that limit inquiry to the fact of conviction,


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there can be no collateral review of the underlying conviction except for Gideon

[right to counsel] claims.”).

      Accordingly, the district court’s dismissal of Mr Mesa-Echevarria’s habeas

petition is AFFIRMED. The motion to proceed in forma pauperis is GRANTED.


                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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