     06-3734-pr, 06-4424-ag
     Ogunwomoju v. United States

 1                        UNITED STATES COURT OF APPEALS
 2                            FOR THE SECOND CIRCUIT
 3
 4                                 August Term 2007
 5
 6                     Docket Nos. 06-3734-pr, 06-4424-ag
 7
 8   Submitted: September 19, 2007                  Decided: January 7, 2008)
 9
10   __________________________________________________________
11
12   ADENIYI OGUNWOMOJU,
13
14                     Petitioner-Appellant,
15
16         v.
17
18   UNITED STATES OF AMERICA,
19
20                     Respondent-Appellee.
21
22   __________________________________________________________
23
24   ADENIYI OGUNWOMOJU,
25
26                     Petitioner,
27         v.
28
29   PEOPLE OF THE STATE OF NEW YORK,
30
31                     Respondent.
32
33   __________________________________________________________
34
35   Before:    MESKILL,1 MINER, and CABRANES, Circuit Judges.
36
37        In response to a motion by the Attorney General of the
38   United States to dismiss a petition purportedly seeking review of
39   an order of removal, we construe the petition as a petition for
40   habeas relief or, in the alternative, for a writ of error coram
41   nobis. We affirm the judgment of the United States District
42   Court for the Southern District of New York (Michael B. Mukasey,
43   Chief Judge) dismissing the petition. In doing so, we hold,


           1
1             The Honorable Thomas J. Meskill, who was a member of this panel and
2    voted with the majority, passed away following submission of this case. The
3    appeal is being decided by the remaining two members of the panel, who are in
4    agreement. See 2d Cir. Interim R. 0.14(b).

                                           1
 1   inter alia, that a petitioner in immigration custody or under an
 2   order of removal as a consequence of his criminal conviction is
 3   not “in custody” within the meaning of 28 U.S.C. § 2254.
 4
 5                                   Ogunwomoju Adeniyi, pro se, 122-02
 6                                   Mantauk Street, Springfield
 7                                   Gardens, NY 11413.
 8
 9
10                                   Sue Chen, Special Assistant United
11                                   States Attorney (Michael J. Garcia,
12                                   United States Attorney for the
13                                   Southern District of New York;
14                                   David S. Jones, Assistant United
15                                   States Attorney, on the brief), New
16                                   York, New York.
17
18   MINER, Circuit Judge:
19
20        The question presented, one of first impression for this

21   Court, is whether a petitioner in immigration detention or under

22   an order of removal as a consequence of a state conviction is “in

23   custody” within the meaning of the statute providing for a writ

24   of habeas corpus to challenge such a conviction.   We join our

25   sister circuits that have considered the issue in holding that

26   immigration detention is not “custody” for the purposes of

27   establishing jurisdiction to consider habeas petitions

28   challenging a state court conviction pursuant to 28 U.S.C. §
29   2254.

30        Adeniyi   Ogunwomoju, (“petitioner” or “Ogunwomoju”) a

31   citizen of Nigeria, filed the petition which forms the basis of

32   the two captioned cases in March of 2006 while he was in

33   immigration detention.   The petition was correctly designated as

34   a habeas petition pursuant to 28 U.S.C. § 2254 by the United

35   States District Court for the Southern District of New York,

36   where the petition was filed.   Pursuant to 28 U.S.C. § 2241(d), a
                                      2
1    petition for a writ of habeas corpus challenging a conviction in

2    state court may be filed “in the district court for the district

3    within which the State Court was held which convicted and

4    sentenced him.”     Because Ogunwomoju’s petition challenges his

5    conviction in the Criminal Court of the City of New York

6    (“Criminal Court”) of criminal possession of a controlled

7    substance, it was properly filed in the District Court for the

8    Southern District of New York (“District Court”).            We construe

9    this petition and Ogunwomoju’s subsequent motion2 as a habeas


           2
 1            This petition, dated March 17, 2006, was received by the Pro Se
 2   Office of the District Court on March 21, 2006, while Ogunwomoju was in
 3   immigration detention in the York County Prison, York, Pennsylvania, a county
 4   prison which also serves as an immigration detention facility. See Ogunwomoju
 5   v. New York, 06-cv–4599 (S.D.N.Y. June 15, 2006). In May 2006, Ogunwomoju
 6   sent a letter to the District Court noting that his address had changed to a
 7   location in Springfield Gardens, New York, suggesting that he was no longer in
 8   detention. Although the petition was not entered on the official docket until
 9   June 15, 2006 — the date of Chief Judge Mukasey’s order dismissing
10   Ogunwomoju’s petition and entering judgment for respondents — for the purposes
11   of establishing petitioner’s custodial status at the time of filing, we find
12   that the petition was filed when it was received by the District Court on
13   March 21, 2006.

14         On June 6, 2006, Ogunwomoju filed a “Motion for Emergency Stay of
15   Deportation” (“Motion for Emergency Stay” or “Motion”) in the District Court.
16   Although the Motion sought relief in relation to Ogunwomoju’s habeas petition,
17   it gave rise to the opening of a new case on the docket of the District Court
18   under the second caption noted above. The Motion was designated on the docket
19   sheet as “Petition in the Nature of Mandamus.” In his Motion, Ogunwomoju
20   reiterated in detail the bases for his habeas claims and argued that his
21   removal to Nigeria should be stayed pending his appeal of the denial of his
22   habeas petition. Ogunwomoju asserted that irreparable harm would be inflicted
23   upon his wife and children if he were to be removed. Noting that his children
24   are U.S. citizens, Ogunwomoju stated that his family would suffer extreme
25   hardship in his absence since he is “a father figure and a provider for the
26   entire family.”

27         By an order signed on September 11, 2006, and entered on September 21,
28   2006, the District Court (Kimba M. Wood, Chief Judge) transferred to the Court
29   of Appeals the Motion, which is designated as an “application challenging
30   petitioner’s order of removal.” Ogunwomoju v. People of the State of New
31   York, No. 06-cv-6972 (S.D.N.Y. Sept. 11, 2006) (“Transfer Order”). Citing the
32   REAL ID Act of 2005, Pub. L. No. 109-13, § 106, 119 Stat. 231 (May 11, 2005),
33   the District Court transferred what it construed to be Ogunwomoju’s petition
34   challenging an order of removal to the Court of Appeals. Id. The District
35   Court’s Transfer Order directed the Clerk of the District Court to assign a
36   separate docket number for this case, resulting in the addition of a second
37   caption as the title of a separate proceeding. The Transfer Order also

                                           3
1    petition rather than as a petition for review of an order of

2    removal.    A timely appeal from the June 15, 2006 judgment of the

3    District Court (Michael B. Mukasey, Chief Judge)3 dismissing that

4    petition confers upon us jurisdiction to review that judgment.

5    28 U.S.C. § 1291.

6                                         I.

7          Ogunwomoju filed this petition after removal proceedings

8    were held as a direct consequence of his several criminal

9    convictions.    From March 11, 2004 through July 20, 2004, the
10   United States Department of Homeland Security (“DHS”) filed

11   multiple charges of removability against Ogunwomoju pursuant to 8

12   U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of crimes


1    directed “that petitioner’s removal or deportation be stayed pending further
2    order of the United States Court of Appeals for the Second Circuit.” Id.
3    Finally, the Transfer Order directed the Clerk of the District Court “to close
4    the matter under [the newly assigned] docket number.” Id. In the interest of
5    judicial economy, we consolidate the captioned appeals.

 6         It appears that Ogunwomoju failed to move for in forma pauperis status
 7   on appeal, see 28 U.S.C. § 1915(a), or for a certificate of appealability, see
 8   28 U.S.C. § 2253(c), to pursue the appeal. In the interest of justice and in
 9   the interest of resolving all issues before us at the same time, we consider
10   the brief on appeal filed by Ogunwomoju as a motion to proceed in forma
11   pauperis and also as a motion for a Certificate of Appealability. Ogunwomoju
12   has not filed a financial affidavit in connection with his appeal, but the
13   District Court first found that he was indigent and thereafter revoked his in
14   forma pauperis status only because it appeared to the District Court that any
15   appeal from the order denying habeas relief would not be taken in good faith.
16   We have no reason to believe that Ogunwomoju’s indigency is not continuing,
17   and we grant him in forma pauperis status to pursue this appeal.

18         We grant the Certificate of Appealability in order to resolve an
19   important issue presented by the habeas petition — whether one who is in
20   immigrtion detention or subject to an order of removal as a consequence of a
21   state court conviction is entitled to seek habeas relief from the state
22   conviction after the sentence has been served.

           3
1             We review a motion by Attorney General Michael B. Mukasey of a
2    judgment entered by Judge Mukasey when he was Chief Judge of the United States
3    District Court for the Southern District of New York. This curiosity is
4    without legal significance since the Attorney General appears before us solely
5    in his official capacity and as the incumbent Attorney General representing
6    the United States in a matter filed by a previous Attorney General.

                                           4
1    of moral turpitude;4 8 U.S.C. § 1227 (a)(2)(A)(iii), for having

2    been convicted of an aggravated felony;5 and 8 U.S.C. §

3    1227(a)(2)(B)(i), for having been convicted of criminal

4    possession of a controlled substance.6

5          Ogunwomoju’s removal proceedings were heard in York,

6    Pennsylvania by an Immigration Judge who denied Ogunwomoju’s

7    application for asylum, withholding of removal, and protection

8    under the Convention Against Torture and ordered Ogunwomoju’s

9    removal to Nigeria.        In re Ogunwomoju, No. A 41 542 092 (I.J.
10   York, PA Sept. 8, 2004).         The BIA affirmed the decision of the

11   Immigration Judge without opinion on February 14, 2005.               In re

12   Ogunwomoju, No. A 41 542 092 (B.I.A. Feb. 14, 2005).              On August

13   3, 2005, in response to Ogunwomoju’s motion to reopen and

14   reconsider its order of removal, the BIA remanded the case to the

15   Immigration Judge to allow Ogunwomoju to pursue an application

16   for relief under Section 212(c) of the Immigration and

17   Naturalization Act, 8 U.S.C. § 1182(c). In re Ogunwomoju, No. A

18   41 542 092 (B.I.A. Aug. 3, 2005).           Section 212(c), which was


           4
1             Ogunwomoju was convicted of petit larceny in the District Court of
2    Nassau County, New York, on January 24, 1994, and in the Criminal Court of the
3    City of New York, on August 16, 1994.

           5
1             On November 13, 1990, petitioner was convicted in the United States
2    District Court for the Southern District of New York of conspiracy to commit
3    credit card fraud where the loss to the victim exceeded $10,000. He was also
4    convicted on November 5, 1993 in the United States District Court for the
5    Eastern District of New York of mail fraud by filing fraudulent income tax
6    returns.

           6
1             On March 7,   2000, Ogunwomoju was convicted in the Criminal Court of
2    the City of New York   following a guilty plea of criminal possession of a
3    controlled substance   in the seventh degree pursuant to Section 220.03 of the
4    New York Penal Law.    It is this conviction that is the subject of the instant
5    habeas petition.

                                             5
1    repealed in 1996 pursuant to the Illegal Immigration Reform and

2    Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, Div.

3    C. Title III-A, 110 Stat. § 304(b), 3009-546, 3009-597, conferred

4    broad jurisdiction upon the Attorney General to waive deportation

5    under certain conditions for aliens “convicted of offenses

6    involving moral turpitude or the illicit traffic in narcotics”

7    who had entered guilty pleas prior to its repeal.   I.N.S. v. St.

8    Cyr, 533 U.S. 289, 294 (2001).

9          On October 11, 2005, the Immigration Judge on remand
10   determined that Ogunwomoju was ineligible for such relief because

11   his drug conviction in the Criminal Court occurred after the

12   repeal of Section 212(c) and because the New York courts had not

13   yet ruled on Ogunwomoju’s post-conviction challenge to that

14   conviction.   In re Ogunwomoju, No. A 41 542 092 (I.J. York, PA

15   Oct. 11, 2005).   Ogunwomoju apparently believes that were it not

16   for his 2000 drug conviction in the Criminal Court, he would be

17   eligible for Section 212(c) relief because his other convictions

18   predated the 1996 repeal of Section 212(c) and because the
19   Immigration Judge referred only to the drug conviction as an

20   impediment to Ogunwomoju’s eligibility for Section 212(c) relief.

21   Id.

22         Reviewing the Immigration Judge’s decision following remand,

23   the BIA on December 27, 2005 concluded that it erroneously had

24   granted Ogunwomoju’s motion to reopen, vacated its decision of

25   August 3, 2005, and denied nunc pro tunc the motion to reopen.

26   In re Ogunwomoju, No. A 41 542 092 (B.I.A. Dec. 27, 2005).    The

                                      6
1    BIA denied petitioner’s subsequent motion to reopen on February

2    17, 2006.    In re Ogunwomoju, No. A 41 542 092 (B.I.A. Feb. 17,

3    2006).   Ogunwomoju sought review of the December 27, 2005 BIA

4    decision in the United States Court of Appeals for the Third

5    Circuit, which on December 7, 2006 dismissed as time-barred

6    Ogunwomoju’s petition to consider the original denial of asylum,

7    withholding of removal, and CAT relief and denied his petition to

8    review the BIA’s denial of his motion to reopen.           See Ogunwomoju

9    v. Att’y Gen. of the U.S., 207 F. App’x 245, 248 (3d Cir. 2006).7
10

11        As a result of the judgment of the Court of Appeals for the

12   Third Circuit, Ogunwomoju’s immigration claims have been

13   thoroughly litigated and they have been conclusively decided

14   against him.

15                                       II.

16        While in immigration detention seeking relief from the

17   immigration decisions through the BIA and Court of Appeals for

18   the Third Circuit, Ogunwomoju also sought, without success, post-
19   conviction relief from his March 7, 2000 drug conviction in the

20   Criminal Court.     After exhausting his options in the New York

21   state courts, he filed a habeas petition in the District Court in

22   March 2006, challenging the conviction entered in the Criminal

23   Court.

24        In challenging his conviction for criminal possession of a

          7
1             Ogunwomoju did not appeal the BIA’s February 17, 2006 denial of his
2    motion to reopen. See Ogunwomoju v. Att’y Gen. of the U.S., 207 F. App’x 245,
3    247 n.1 (3d Cir. 2006)

                                          7
1    controlled substance in the seventh degree, which entailed a

2    sentence of time served and a six-month suspension of his

3    driver’s license, Ogunwomoju advanced the following arguments in

4    his habeas petition: (1) that his plea of guilty was “unlawfully

5    induced or not made voluntarily with understanding of the nature

6    of the charge and the consequences of the plea”; (2) that trial

7    counsel was ineffective for “waiv[ing] a formal plea allocution”

8    and for failing to “advise him of the effect his plea would have

9    on his immigration status;” and (3) that the evidence seized from
10   him was taken in violation of the Fourth Amendment, since at the

11   time of his arrest “he was merely sitting in a parked automobile

12   and was not engaging in any suspicious activity.”

13        On June 15, 2006, Chief Judge Mukasey, inter alia, dismissed

14   the habeas petition, finding no basis for the relief sought under

15   28 U.S.C. § 2254.   Specifically, Chief Judge Mukasey found that

16   Ogunwomoju was in immigration custody and not in custody pursuant

17   to the challenged criminal conviction.   The sentence for the drug

18   conviction had been fully served by the time Ogunwomoju filed his
19   habeas petition.    The Court therefore determined that it lacked

20   jurisdiction to consider his habeas petition. Ogunwomoju v. New

21   York, 06-cv-4599, *2 (S.D.N.Y. June 15, 2006).    The Court also

22   considered and rejected coram nobis relief as an alternative

23   remedy. Id. at *2-3.   Finding that Ogunwomoju had not made a

24   substantial showing of the denial of a constitutional right, the

25   District Court declined to issue a certificate of appealability

26   in accordance with 28 U.S.C. § 2253. Id. at *4.     Finally, the

                                       8
1    District Court certified, pursuant to 28 U.S.C. § 1915(a)(3),

2    that any appeal from the court’s order would not be taken in good

3    faith and, accordingly, revoked Ogunwomoju’s in forma pauperis

4    status.   A Notice of Appeal was timely filed on July 6, 2006.

5                                      III.

6         In order for a District Court to entertain a petition for

7    habeas relief, the application for relief must be made “in behalf

8    of a person in custody pursuant to the judgment of a State court

9    only on the ground that he is in custody in violation of the
10   Constitution or laws or treaties of the United States.”    28

11   U.S.C. § 2254(a) (emphasis supplied).    A petitioner must be “in

12   custody” in order to invoke habeas jurisdiction of the federal

13   courts.   Custody

14        is required not only by the repeated references in the
15        statute but also by the history of the great writ. Its
16        province, shaped to guarantee the most fundamental of
17        all rights, is to provide an effective and speedy
18        instrument by which judicial inquiry may be had into
19        the legality of the detention of a person.
20
21   Carafas v. LaVallee, 391 U.S. 234, 238 (1968) (internal citations

22   omitted).   In Carafas, the petitioner was incarcerated under the
23   state sentence he sought to attack when he filed his petition for

24   habeas relief.   Id. at 235–36.    He was unconditionally discharged

25   from custody while his appeal was pending, and the state then

26   claimed that his discharge rendered further proceedings moot.

27   Id. at 236.   The Supreme Court rejected that argument, noting,

28   inter alia, that “collateral consequences” of conviction, such as

29   disqualification from engaging in certain businesses, from

30   serving as a labor union officer, and from voting and serving as
                                         9
1    a juror, survive the expiration of a sentence.   Id. at 237–38.

2    It is on the basis of that decision that petitioner argues in the

3    instant case that his immigration detention, resulting from an

4    order of removal issued in consequence of his drug conviction,

5    qualifies him as “in custody” pursuant to the judgment of the

6    state court for the purpose of establishing our jurisdiction to

7    consider his habeas petition under 28 U.S.C. § 2254.

8         However, in a later explication of its holding in Carafas,

9    the Supreme Court made it clear that it had
10        rested that holding not on the collateral consequences
11        of the conviction, but on the fact that the petitioner
12        had been in physical custody under the challenged
13        conviction at the time the petition was filed. The
14        negative implication of this holding is, of course,
15        that once the sentence imposed for a conviction has
16        completely expired, the collateral consequences of that
17        conviction are not themselves sufficient to render an
18        individual “in custody” for the purposes of a habeas
19        attack upon it.
20
21   Maleng v. Cook, 490 U.S. 488, 492 (1989) (emphasis in original).

22   In Maleng, the Court determined that a state detainer placed with

23   the federal authorities to assure that a petitioner would begin

24   to serve his state sentence at the conclusion of his federal
25   sentence satisfied the requirement that a petitioner be “in

26   custody” for the purpose of a habeas attack on the state

27   conviction.   Id. at 493.

28        Although Ogunwomoju was in immigration detention at the time

29   he filed the habeas petition in the District Court to challenge




                                    10
1    his New York conviction,8 he was not in custody pursuant to a

2    judgment of a state court.       His state court sentence, consisting

3    of “time served” incarceration and a six-month license

4    suspension, had been fully served in the year 2000, nearly six

5    years before he filed his habeas petition.          Ogunwomoju filed his

6    habeas petition in March of 2006 from the place of his

7    immigration detention, where he was in custody pending further

8    action in his removal proceeding.

9          We held before the enactment of the REAL ID Act, 119 Stat.
10   231, “that where a petitioner who is currently serving a state

11   sentence seeks to challenge a final order of removal, that order

12   is ‘sufficient, by itself, to establish the requisite custody’

13   for habeas purposes” under 28 U.S.C. §2241.9          Duamutef v. I.N.S.,

14   386 F.3d 172, 178 (2d Cir. 2004).         However, we have not



           8
1             Ogunwomoju is not in immigration detention at this time, although he
2    was at the time he filed his habeas petition. However, he is still subject to
3    the order of removal and is therefore still in immigration custody. See
4    Simmonds v. I.N.S., 326 F.3d 351, 355 (2d Cir. 2003) (“[W]e have held that an
5    alien who has been released on bail from INS detention but is subject to a
6    final order of removal is in INS custody.”).

           9
1             Prior to the May 13, 2005 enactment of the REAL ID Act, 119 Stat.
2    231, persons held in immigration detention or subject to an order of removal
3    could challenge their detention through a petition for a writ of habeas corpus
4    in district court pursuant to 28 U.S.C. §2241. See, e.g.,Richards v. Ashcroft,
5    400 F.3d 125, 127 (2d Cir. 2005).

 6         Since passage of the REAL ID Act, district courts no longer have
 7   jurisdiction to consider habeas petitions challenging immigration petitions,
 8   see 8 U.S.C. § 1252(a)(5), and all habeas petitions challenging immigration
 9   detention that were pending before passage of the REAL ID Act are construed as
10   petitions for review of orders of removal, see Gittens v. Menifee, 428 F.3d
11   382, 383, 385 (2d Cir. 2005). New petitions for review must be filed with the
12   appropriate circuit of the United States Court of Appeals within 30 days of
13   the BIA’s entry of the final order of removal. 8 U.S.C. § 1252(a)(5), (b)(1).
14   Thus Ogunwomoju’s petition for review was properly considered by the Third
15   Circuit, and we are without jurisdiction to consider any subsequent petition
16   for review challenging the order of removal issued by the Immigration Judge in
17   Pennsylvania.

                                          11
1    previously considered the converse — whether a petitioner in

2    immigration detention or under an order of removal as the result

3    of a criminal conviction is “in custody” for the purpose of a §

4    2254 challenge to that criminal conviction.    We do so now, and

5    join our sister circuits that have determined that one held in

6    immigration detention is not “in custody” for the purpose of

7    challenging a state conviction under § 2254.    See Resendiz v.

8    Kovensky, 416 F.3d 952, 956–58 (9th Cir. 2005);    Broomes v.

9    Ashcroft, 358 F.3d 1251, 1254 (10th Cir. 2004); cf. United States
10   v. Esogbue, 357 F.3d 532, 534 (5th Cir. 2004)(holding that

11   immigration detention is not “custody” for the purposes of a

12   habeas petition challenging a federal conviction under 28 U.S.C.

13   § 2255); Kandiel v. United States, 964 F.2d 794, 796 (8th Cir.

14   1992) (same).

15        Removal proceedings are at best a collateral consequence of

16   conviction, and we must bear in mind “that once the sentence

17   imposed for a conviction has completely expired, the collateral

18   consequences of that conviction are not themselves sufficient to
19   render an individual ‘in custody’ for the purpose of a habeas

20   attack upon it.”   Maleng, 490 U.S. at 492.   That is precisely the

21   situation in which Ogunwomoju now finds himself.    And because the

22   “in custody” language of § 2254(a) is jurisdictional and requires

23   that habeas petitioners be in custody under a state conviction or

24   sentence when they file for habeas relief, the judgment of the

25   District Court dismissing Ogunwomoju’s habeas petition for want

26   of jurisdiction must be affirmed.

                                     12
1                                     IV.

2         The District Court construed Ogunwomoju’s habeas petition in

3    the alternative as a petition for a writ of error coram nobis and

4    denied alternative relief.   We have held that federal courts lack

5    jurisdiction to grant such writs with respect to state court

6    judgments.    See Finkelstein v. Spitzer, 455 F.3d 131, 133–34 (2d

7    Cir. 2006).   The writ traditionally has been utilized by courts

8    to correct errors within their own jurisdiction.    Id.   The All

9    Writs Act, 28 U.S.C. § 1651(a), empowers the federal courts to
10   issue writs of error coram nobis but only such as are “necessary

11   or appropriate in aid of their jurisdictions and agreeable to the

12   uses and principles of law.”    We have noted with approval that

13   the “Sister Circuits that have addressed this question have ruled

14   that the district courts lack jurisdiction to issue writs of

15   error coram nobis to set aside judgments of State Courts.”

16   Finkelstein, 455 F.3d at 134.    Accordingly, the District Court

17   properly denied coram nobis as alternative relief.
18                                Conclusion

          We affirm the June 15, 2006 judgment of the United States

     District Court for the Southern District of New York dismissing

     for want of jurisdiction Ogunwomoju’s petition for the writ of

     habeas corpus or, in the alternative, for the writ of coram

     nobis. To the extent that Ogunwomoju’s petitions can be construed

     as a petition for review of the BIA’s order of removal (a matter

     fully litigated to conclusion in the Third Circuit), we grant the

     Attorney General’s motion to dismiss Ogunwomoju’s petition for

                                      13
want of jurisdiction, and we vacate the September 11, 2006 Order

of the District Court entering a stay of removal.




                               14
