                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              FEB 04 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 11-57240

              Plaintiff - Appellee,              D.C. Nos.    2:11-cv-03080-PA
                                                              2:07-cr-01276-PA-2
  v.

CHRISTOPHER NDIAGU,                              MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                    Percy Anderson, District Judge, Presiding

                           Submitted February 2, 2015**
                              Pasadena, California

Before: D.W. NELSON, BYBEE, and IKUTA, Circuit Judges.

       Christopher Ndiagu (“Ndiagu”) appeals the district court’s dismissal of his

motion to vacate, set aside or correct sentence filed pursuant to 28 U.S.C. § 2255


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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(“§2255 Motion”) based on a claim of ineffective assistance of counsel. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      After being charged in a nine-count indictment in the district court, Ndiagu

pleaded guilty to two counts: mail theft and identity theft under 18 U.S.C. §§

1028A(a)(1), 1708. Prior to pleading guilty, Ndiagu alleges his attorney assured

him that his resulting convictions would not render him mandatorily deportable

and that an immigration judge could consider certain factors to grant him relief

from deportation.

      Ndiagu was sentenced to 30 months in custody followed by two years of

supervised release. After completing his sentence, Ndiagu was immediately

transferred into the custody of the Department of Homeland Security (“DHS”) on

December 21, 2009. On that date, Ndiagu was served with both a Notice to

Appear (“NTA”) and a Notice of Custody Determination (“NCD”) from DHS.

Ndiagu alleges that at a hearing before an immigration judge on January 6, 2011,

he was informed for the first time that he was mandatorily deportable based on his

convictions.

      On March 9, 2011, Ndiagu filed his § 2255 Motion pro se in the district

court. On November 30, 2011, the district court dismissed his § 2255 Motion as

untimely.

                                         2
      Although not raised by either of the parties, we first consider our jurisdiction

over this case. A petition for writ of habeas corpus under 28 U.S.C. § 2255 may

only be filed by “[a] prisoner in custody.” The “in custody” requirement is

jurisdictional in nature and applies at the time the petition is filed. United States v.

Reves, 774 F.3d 562, 564–65 (9th Cir. 2014). Although Ndiagu was no longer in

federal prison when he filed his § 2255 Motion, he was still subject to a term of

supervised release, which satisfies the “in custody” requirement. Matus-Leva v.

United States, 287 F.3d 758, 761 (9th Cir. 2002). Additionally, because Ndiagu

remains subject to the collateral consequence of removal, his case is not mooted by

the fact that he is no longer “in custody.” Zegarra-Gomez v. I.N.S., 314 F.3d 1124,

1126 (9th Cir. 2003).

      Under 28 U.S.C. § 2255(f)(4), the one-year statute of limitations for Ndiagu

to file his § 2255 Motion began to run from “the date on which the facts supporting

the claim or claims presented could have been discovered through the exercise of

due diligence.” “Due diligence does not require the maximum feasible diligence,

but it does require reasonable diligence in the circumstances.” Ford v. Gonzalez,

683 F.3d 1230, 1235 (9th Cir. 2012) (internal quotation marks and citation




                                           3
omitted).1 Had Ndiagu exercised due diligence, he would have discovered the

factual predicate for his claims when he was transferred into DHS custody and

received both the NTA and the NCD on December 21, 2009. Those documents

informed Ndiagu that he was being charged with a crime involving moral

turpitude, which would clearly render him ineligible for cancellation of removal or

adjustment of status and mandatorily detainable under the Immigration and

Nationality Act. 8 U.S.C. §§ 1229b(b)(1)(C), 1226(c). Although Ndiagu may not

have “underst[ood] the legal significance” of these facts, he was aware of “the facts

themselves” on December 21, 2009. See Hasan v. Galaza, 254 F.3d 1150, 1154

n.3 (9th Cir. 2001). His § 2255 Motion filed on March 9, 2011, is therefore

untimely under 28 U.S.C. § 2255(f)(4).

      AFFIRMED.




      1
        Although Ford involved analysis of the nearly identical statute of
limitations under 28 U.S.C. § 2244, we have previously noted that “the Supreme
Court has interpreted the statute-of-limitations provisions of § 2244 and § 2255 in
concert with one another.” Shannon v. Newland, 410 F.3d 1083, 1088 (9th Cir.
2005).

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