                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0917
                              Filed August 27, 2014

VICTOR HERNANDEZ GALARZA,
     Petitioner-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Odell G. McGhee II,

District Associate Judge.



      An immigrant who successfully discharged his probation from a deferred

judgment appeals the dismissal of his petition seeking habeas corpus relief in

connection with federal deportation consequences. AFFIRMED.



      Benjamin D. Bergmann of Parrish, Kruidenier, Dunn, Boles, Gribble &

Gentry, L.L.P., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, John P. Sarcone, County Attorney, and Kevin Hathaway, Assistant

County Attorney, for appellee.



      Considered by Tabor, P.J., Mullins, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
                                            2



TABOR, P.J.

       Victor Hernandez Galarza (Hernandez) challenges the district court’s

denial of his petition for writ of habeas corpus. Hernandez claims he received

ineffective assistance of counsel in the form of misadvice as to the deportation

consequences of his guilty plea. Because a state writ cannot reach Hernandez’s

federal custodian, assuming he is in federal custody, we affirm.

I.     Background Facts and Proceedings.

       Hernandez, an immigrant who was legally in the United States,1 used a

false social security number to obtain a certificate of title to a vehicle. As a result,

the Polk County Attorney charged Hernandez with fraudulent practice in the third

degree under Iowa Code section 714.11 (2011). Hernandez entered a guilty plea

to a reduced charge of fraudulent practices in the fourth degree under section

714.12. The district court granted Hernandez a deferred judgment with one year

of probation, a fine, and community service. After Hernandez had successfully

fulfilled the conditions of the deferred judgment, the district court filed a probation

discharge order, and Hernandez’s conviction was expunged.

       Hernandez alleges that as a consequence of his guilty plea, the U.S

Immigration and Customs Enforcement (ICE) initiated deportation procedures

against him.2 The threat of deportation prompted Hernandez to file a petition for

a writ of habeas corpus under Iowa Code chapter 663 or, in the alternative, for a



1
  The trial court record includes an employment authorization card, valid for one year,
issued to Hernandez by the United States Department of Homeland Security on July 6,
2011.
2
  Although the habeas petition refers to an exhibit titled “Notice to Appear,” we could not
find that exhibit or any other ICE document included in the state trial court record.
                                         3



writ of coram nobis. His petition alleged ineffective assistance of counsel in his

state plea proceedings.      Hernandez argued defense counsel neglected to

properly advise him about the immigration consequences of the plea in violation

of the standard of representation set in Padilla v. Kentucky, 559 U.S. 356 (2010).

The district court dismissed Hernandez’s petition, finding “no evidence of illegal

detention.” Hernandez appeals the dismissal of his habeas petition; he does not

pursue the writ-of-coram-nobis ground for relief.

II.    Analysis of State Habeas Claim

       Because the petition for writ of habeas corpus “does not invoke the court’s

equitable powers,” our review is not de novo. See Cummings v. Lainson, 33

N.W.2d 395, 397 (Iowa 1948). We review the dismissal of Hernandez’s habeas

petition for correction of errors at law. See Iowa R. App. P. 6.907.

       Hernandez asserts that during the state guilty-plea proceedings his

attorney did not advise him that a deferred judgment could result in deportation, a

severe consequence for an immigrant.         Hernandez now seeks to undo the

federal consequences of his state guilty plea by challenging counsel’s

performance through a petition for a writ of habeas corpus under Iowa Code

chapter 663 and article 1, section 13 of the Iowa Constitution.

       Criminal justice is for the most part a system of pleas, not a system of

trials. Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012) (noting ninety-four percent

of state convictions are the result of guilty pleas).     In light of this statistic,

negotiation of a plea bargain is a critical phase of litigation for purposes of the

Sixth Amendment right to effective assistance of counsel. Padilla, 559 U.S. at
                                         4



373. Among the important issues for counsel to consider in negotiating a plea

agreement are the collateral consequences state and federal laws increasingly

impose on criminal convictions. See Daughenbaugh v. State, 805 N.W.2d 591,

593 (Iowa 2011).

       As the present appeal illustrates, deportation is one of the most serious

collateral consequences for noncitizens who plead guilty to certain crimes. See

Padilla, 559 U.S. at 364. In light of the severity of deportation—“the equivalent of

banishment or exile”—the Padilla Court held that to satisfy the Sixth Amendment

right to effective assistance, criminal defense counsel must inform their clients if

a plea carries the risk of adverse immigration consequences. Id. at 373. The

absence of that information underlies Hernandez’s ineffectiveness claim against

defense counsel.

       Normally, if defense counsel did not provide effective assistance of

counsel, a criminal defendant may challenge his or her guilty plea on direct

appeal, even without filing a motion in arrest of judgment. See State v. Kress,

636 N.W.2d 12, 19 (Iowa 2001). A claim of ineffective assistance of counsel also

may be raised via Iowa’s postconviction relief chapter. Relief is available to

“[a]ny person who has been convicted of, or sentenced for, a public offense and

who claims . . . [t]he conviction or sentence was in violation of the Constitution of

the United States . . . .” Iowa Code § 822.2.

       Because the district court granted Hernandez a deferred judgment after

his guilty plea, neither a direct appeal nor a postconviction relief action was
                                            5



available to Hernandez.3 Hernandez could not raise his ineffective assistance

claim on direct appeal. See State v. Stressman, 460 N.W.2d 461, 462 (Iowa

1990) (“[B]ecause a final judgment does not exist, defendant’s case is not

appealable by him as a matter of right.”); see also McKeever v. Gerard, 368

N.W.2d 119 (Iowa 1985) (declining to recognize a certiorari challenge to a

deferred judgment because “[a] defendant who elects to have the case

eventually treated as if there were no conviction cannot simultaneously attack the

case as if there had been one”). Nor could Hernandez file a postconviction relief

application because he does not have a “conviction” as that term was interpreted

in Daughenbaugh. A “conviction” under section 822.2 must be based upon an

underlying criminal adjudication and entry of judgment.            Daughenbaugh, 805

N.W.2d at 599. Upon the completion of all conditions of a deferred judgment, the

defendant is discharged without entry of judgment. See Iowa Code § 907.3(1). It

follows that “a guilty plea pursuant to a deferred judgment is not a conviction

under Iowa's postconviction relief statute.” Daughenbaugh, 805 N.W.2d at 598.

When Hernandez fulfilled the conditions of his deferred judgment, he did not

have a conviction from which he could seek relief under section 822.2.

       Because the traditional routes for raising a claim of ineffective assistance

are closed to him, Hernandez seizes on a footnote in Daughenbaugh in support

of his collateral attack by writ of habeas corpus. After finding Daughenbaugh,

who received a deferred judgment, was not entitled to postconviction relief, the


3
  Hernandez claims in his reply brief that he had the “bad luck” of being granted a
deferred judgment, “an outcome that is entirely at the discretion of the sentencing judge.”
This claim is not entirely correct; a sentencing court may only defer judgment with the
consent of the defendant. See Iowa Code § 907.3(1).
                                          6



supreme court stated: “We express no opinion upon whether or under what

circumstances a guilty plea followed by a deferred judgment might be subject to

collateral attack under Iowa Code chapter 663.” Daughenbaugh, 805 N.W.2d at

599 n.1.    Chapter 663 is cross referenced in the opening provision of the

postconviction relief chapter, as follows: “The provisions of section 663.1 through

663.44, inclusive, shall not apply to persons convicted of, or sentenced for, a

public offense.” Iowa Code § 822.1. Because a deferred judgment is not a

conviction, it may be subject to a collateral attack by writ of habeas corpus under

chapter 663.

       Habeas corpus literally means “you have the body.” Hottle v. Dist. Ct., 11

N.W.2d 30, 34 (Iowa 1943). A petition for writ of habeas corpus under chapter

663 is an avenue to challenge illegal restraint by the government.

Daughenbaugh, 805 N.W.2d at 594. Our courts recognize habeas corpus as a

“valuable and important right” which is essential in “guarding and preserving

human liberty.” State v. Iowa Dt. Ct., 581 N.W.2d 640, 643 (Iowa 1998) (quoting

Peff v. Doolittle, 15 N.W. 2d 913, 915 (Iowa 1944)).         Habeas corpus cannot

perform the function of an appeal and may not be used as a means of reviewing

legal error. Bell v. Lainson, 74 N.W.2d 592, 593 (Iowa 1956).

       At its core, habeas is a challenge to the lawfulness of the custody imposed

on the subject of the petition. See Maleng v. Cook, 490 U.S. 488, 490–491

(1989). This “in custody” requirement is reflected in Iowa’s habeas statute, which

requires a petitioner to state “[t]hat the person in whose behalf [the writ] is sought

is restrained of the person’s liberty, and the person by whom and the place
                                            7



where the person is so restrained, mentioning the names of the parties, if known,

and if unknown describing them with as much particularity as practicable.” Iowa

Code § 663.1(1).

        On appeal, Hernandez asserts his petition complied with all requirements

set out in section 663.1.     That assertion is inaccurate. Hernandez’s habeas

petition does not specifically state how he is restrained of his liberty, where, or by

whom.     The petition’s lack of specificity is problematic because “[t]he writ of

habeas corpus does not act upon the prisoner who seeks relief, but upon the

person who holds him in what is alleged to be unlawful custody.” See Braden v.

30th Judicial Circuit Ct. of Ky., 410 U.S. 484, 494–95 (1973). Consequently, the

writ must be addressed to the immediate custodian of the defendant. Rumsfeld

v. Padilla, 542 U.S. 426, 435 (2004); see also Iowa Code § 663.8.

        Hernandez does not contend he is in state custody, and indeed could not

because his state sentence has expired. Once a state sentence has expired, the

collateral consequences of          the   guilty   plea—including the “hazards     of

deportation”—do not render an individual “in custody” for purposes of a state

habeas attack on the expired sentence. See In re Azurin, 87 Cal. App. 4th 20, 26

(Cal. Ct. App. 2001) (reversing order granting state habeas relief from plea when

Azurin was in custody of United States Immigrant and Naturalization Service, an

agency of a different sovereign).
                                            8



       Assuming, without holding, that Hernandez is in federal custody by virtue

of an ICE detainer,4 it follows that he must address his habeas corpus petition to

his federal custodian. Historically, state courts routinely issued the writ of habeas

corpus to achieve jurisdiction over prisoners in federal custody. See Charles

Warren, Federal and State Court Interference, 43 Harv. L. Rev. 345, 353 (1930).

But since 1871, state courts have not had the authority to do so. In re Tarble, 80

U.S. 397, 410 (1871) (rejecting claim that state writ of habeas corpus could direct

delivery of a prisoner held by federal officer); see also State v. Theoharopoulos,

240 N.W.2d 635, 638–39 (Wis. 1976) (addressing defendant’s challenge to state

marijuana conviction which subjected him to the penalty of deportation and

noting “state habeas corpus appears inappropriate, because the defendant is in

the custody of federal authorities”). Hernandez cannot use the Iowa habeas law

to command action by federal immigration officials.

       In summary, although habeas corpus may, in some situations, be

available under chapter 663 to challenge a deferred judgment, a state writ cannot

reach Hernandez’s federal custodian, if any. Accordingly, the state trial court

correctly denied Hernandez’s petition for habeas corpus relief.

       AFFIRMED.




4
  For federal habeas purposes, the Eight Circuit has ruled that filing a detainer does not
amount to custody, technical or otherwise. See Campillo v. Sullivan, 853 F.2d 593, 596
(8th Cir. 1988); see also Galaviz-Medina v. Wooten, 27 F.3d 487, 493 (10th Cir. 1994)
(noting almost all circuit courts considering the issue have determined lodging a
detainer, without more, is insufficient to render an immigrant in custody).
