                                                                      F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                                       PUBLISH
                                                                      FEB 17 2004
                    UNITED STATES COURT OF APPEALS
                                                               PATRICK FISHER
                                                                         Clerk
                                     TENTH CIRCUIT



 ERROL L. BROOMES,

        Petitioner-Appellant,

 v.                                                  No. 02-6419

 JOHN ASHCROFT, Attorney General,
 BROOKLYN DISTRICT ATTORNEY;
 HONORABLE CHARLES HYNES,

         Respondents-Appellees.
----------------------------------
 ASFAW MEKONNEN ABTEW

        Petitioner-Appellant,

 v.                                                  No. 03-1063

 UNITED STATES DEPARTMENT OF
 JUSTICE; IMMIGRATION &
 NATURALIZATION SERVICE,

        Respondents-Appellees.


           Appeal No. 02-6419 from the United States District Court
                    for the Western District of Oklahoma
                           (D.C. No. 02-CV-1290-T)

           Appeal No. 03-1063 from the United States District Court
                         for the District of Colorado
                             (D.C. No. 02-Z-1699)
Submitted on the briefs. *

Michael A. Scaperlanda of College of Law University of Oklahoma, Norman
Oklahoma, on the briefs for Petitioners-Appellants in No. 02-6419 & No. 03-
1063.

Charles J. Hynes, District Attorney, Kings County, New York, and Leonard
Joblove and Amy Appelbaum, Assistant District Attorneys of Counsel, Brooklyn,
New York, on the brief for Respondent-Appellee Charles Hynes in No. 02-6419.
John W. Suthers, United States Attorney, and John M. Hutchins, Assistant United
States Attorney, Denver, Colorado, on the briefs for Respondents-Appellees in
No. 03-1063.


Before EBEL, Circuit Judge, BRORBY, Senior Circuit Judge, and BRISCOE,
Circuit Judge.


BRORBY, Senior Circuit Judge.


      The appellants in this consolidated appeal are lawful permanent residents

facing deportation as a result of criminal convictions. They seek habeas corpus

relief on grounds they received ineffective assistance of counsel when their

respective attorneys failed to adequately advise them of the possible immigration

consequences of pleading guilty. We consolidated these cases for procedural

purposes, appointed counsel, and granted a certificate of appealability limited to


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.


                                           -2-
three issues: (1) whether the district court may review an expired state conviction

under 28 U.S.C. § 2241 where that conviction serves as a predicate for

Immigration and Naturalization Service detention; (2) whether counsel renders

ineffective assistance by failing to advise a client of the deportation consequences

that arise when a conviction is entered; and (3) whether the appellants

demonstrated prejudice under the second prong of Strickland v. Washington, 466

U.S. 668, 687 (1984). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we

affirm the judgments of the district courts dismissing Mr. Broomes’ 28 U.S.C.

§ 2254 claim and Mr. Abtew’s 28 U.S.C. § 2241 claim. For the reasons provided

herein, we deny Mr. Abtew’s request for a certificate of appealability on his

§ 2254 claim and dismiss such claim on appeal.



No. 03-1063, Abtew v. Immigration & Naturalization Service

      Asfaw Abtew, an immigrant from Ethiopia, is awaiting an Immigration and

Nationalization Service ruling on whether he will be deported from the United

States based on his two criminal convictions. The convictions were entered after

he pleaded guilty in Colorado state court to third degree sexual assault and

contributing to the delinquency of a minor. Mr. Abtew received two years

probation for the sexual assault conviction and four years deferred sentence for

the contribution conviction. Two years later, Mr. Abtew attempted to withdraw


                                         -3-
his guilty pleas through a state post-conviction action, arguing his counsel acted

ineffectively by failing to adequately advise him of the immigration consequences

of pleading guilty. The Colorado district court denied relief on the merits, and

the Colorado Court of Appeals affirmed, also on the merits. On April 29, 2002,

the Colorado Supreme Court denied certiorari, resulting in the full exhaustion of

Mr. Abtew’s state remedies. In 2000, during the pendency of his state post-

conviction proceedings, Mr. Abtew’s sentences expired.



      Raising the same ineffective assistance of counsel argument, Mr. Abtew

sought habeas relief from the federal courts pursuant to 28 U.S.C. § 2241. The

district court denied his petition, noting that because he was represented by

counsel in state court and his state court convictions expired, the validity of his

convictions was not subject to review under § 2241. It also held Mr. Abtew did

not satisfy the jurisdictional “in custody” requirement for review under 28 U.S.C.

§ 2254. Mr. Abtew appeals these determinations.



Discussion

      Mr. Abtew first asks us to review his state court convictions under § 2254.

He points out he is a member of a class of possible petitioners who cannot seek

habeas relief because, based on the shortness of their sentence, they cannot satisfy


                                          -4-
both the “in custody” and exhaustion requirements. Mr. Abtew asks us to adopt a

rule excusing habeas petitioners from the “in custody” requirement if, like him,

they were diligently pursuing state court relief when their convictions expired.



      Because Mr. Abtew’s certificate of appealability does not encompass this

issue, we construe his brief as an application for a certificate of appealability.

Accordingly, he must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Section 2254 states the federal

courts “shall entertain an application for a writ of habeas corpus in behalf of a

person in custody pursuant to a judgment of a State court only on the ground that

he is in custody in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2254(a) (emphasis added). The “in custody” language of

§ 2254 is jurisdictional and requires habeas petitioners to be “in custody” under

the conviction or sentence under attack when they file the petition. Maleng v.

Cook, 490 U.S. 488, 490-91 (1989).



      In Maleng, the Supreme Court held once a prisoner’s sentence expires, he is

no longer “in custody” under that conviction sufficient for the court to exercise

jurisdiction to hear a habeas petition under § 2254. 490 U.S. at 492. The Court

further addressed the issue in Lackawanna County District Attorney v. Coss, 532


                                          -5-
U.S. 394, 403-04 (2001), where it stated:

      [O]nce a state conviction is no longer open to direct or collateral
      attack in its own right because the defendant failed to pursue those
      remedies while they were available (or because the defendant did so
      unsuccessfully), the conviction may be regarded as conclusively
      valid. If that conviction is later used to enhance a criminal sentence,
      the defendant generally may not challenge the enhanced sentence
      through a petition under § 2254 on the ground that the prior
      conviction was unconstitutionally obtained.

(Citation omitted). The only exceptions exist when: 1) counsel is not appointed in

violation of the Sixth Amendment; or 2) no channel of review is available through

no fault of the petitioner. Id. at 404-05; Daniels v. United States, 532 U.S. 374,

382-84 (2001).



      Mr. Abtew is not currently “in custody pursuant to a judgment of a State

court,” but rather is in federal custody awaiting a final removal determination by

the Immigration and Naturalization Service. Moreover, Mr. Abtew does not raise,

nor does he meet, the two “in custody” requirement exceptions. He therefore is

not entitled to review under § 2254.



      As to the issue of exhaustion, Mr. Abtew artfully attempts to overcome the

“in custody” requirement by carving out a new exemption, excusing the

requirement for those who, like him, were diligently pursuing state court relief

when their convictions or sentences expired. However, the “in custody”

                                         -6-
jurisdictional requirement is statutorily set and the question of who is entitled to

habeas review is a policy determination to be made by the legislature rather than

the judiciary. Moreover, the Supreme Court’s judicial interpretation of the

applicable statutes has squarely set out only two exceptions, of which Mr. Abtew

meets neither. For these reasons, Mr. Abtew has not demonstrated reasonable

jurists would find the district court’s assessment of his constitutional claims

debatable or wrong. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). Thus, we

deny Mr. Abtew a certificate of appealability as to this issue.



       Next, Mr. Abtew asks us to review his state court convictions under

§ 2241. 1 As previously mentioned, the district court held Mr. Abtew could not

challenge his state court convictions under § 2241 because they expired. Mr.

Abtew argues the district court should have reviewed his state court convictions

because they serve as the predicate to his Immigration and Naturalization Service

detention.



       We review the district court’s dismissal of a § 2241 habeas petition de


       1
         Because Mr. Abtew is subject to a deportation order and is considered in
Immigration and Naturalization Service custody for that purpose, see Aguilera v.
Kirkpatrick, 241 F.3d 1286, 1291-92 (10th Cir. 2001), a certificate of appealability is not
required to appeal denial of his § 2241 petition. See id. at 1292.


                                            -7-
novo. See Patterson v. Knowles, 162 F.3d 574, 575 (10th Cir.1998). As the

district court accurately noted, the Supreme Court has held, for purposes of

§§ 2254 and 2255, a petitioner generally may not challenge a prior conviction that

expired in the course of challenging his current detention. Daniels, 532 U.S. at

382; Coss, 532 U.S. at 403. The Court grounded these decisions on

“considerations relating to the need for finality of convictions and ease of

administration.” Coss, 532 U.S. at 402.



      We believe the interests of finality and ease of administration, articulated

in Coss and Daniels, apply with equal force to § 2241 petitions. Our

determination is consistent with the decisions of the only other circuit and district

courts that have faced this issue. See Drakes v. I.N.S., 330 F.3d 600, 605-06 (3d

Cir.), cert. denied, 124 S. Ct. 541 (2003); Contreras v. Schiltgen, 151 F.3d 906,

907-08 (9th Cir. 1998); Neyor v. I.N.S., 155 F.Supp.2d 127, 138-39 (D. N.J.

2001). Accordingly, we hold a petitioner cannot collaterally attack an expired

state court conviction under § 2241. Because Mr. Abtew cannot challenge his

expired state court conviction directly under § 2254, he likewise cannot challenge

it collaterally under § 2241.



      In conclusion, we decline to issue a certificate of appealability on the


                                          -8-
question of whether the district court should have reviewed Mr. Abtew’s claims

under § 2254. We also affirm the district court’s conclusion Mr. Abtew cannot

challenge his expired state court conviction under § 2241. Moreover, as the

following discussion demonstrates, Mr. Abtew would not be entitled to relief even

if the merits of his claim were properly before us.



No. 02-6419, Broomes v. Ashcroft

      Erroll Broomes, an immigrant from Barbados, is in the custody of the

Immigration and Naturalization Service, in an Oklahoma detention center,

awaiting deportation from the United States due to his status as an aggravated

felon. Mr. Broomes pleaded guilty to a drug-related criminal charge before a

New York state court. As a result of this conviction, the Immigration and

Naturalization Service detained Mr. Broomes, and he was subsequently ordered

removed from the United States due to his status as an aggravated felon.



      After unsuccessfully attempting to withdraw his plea in state court, Mr.

Broomes sought habeas relief from the federal courts pursuant to 28 U.S.C.

§ 2241, arguing his state court conviction was obtained in violation of his Sixth

Amendment right to effective assistance of counsel. The magistrate judge issued

an order indicating Mr. Broomes must file a petition under 28 U.S.C. § 2254 to


                                         -9-
challenge a state court conviction. Mr. Broomes thereafter raised the same claim

under § 2254. 2 Based on a magistrate judge’s recommendation and over Mr.

Broomes’ objection, the district court denied the petition because this circuit had

previously rejected a similar argument in Varela v. Kaiser, 976 F.2d 1357 (10th

Cir. 1992).



Discussion

       On appeal, Mr. Broomes continues to argue he received ineffective

assistance of counsel in violation of his Sixth Amendment rights. He believes his

attorney had a duty to advise him of the possible immigration consequences of

pleading guilty. Mr. Broomes acknowledges we rejected this argument in Varela,

but argues we should now decline to follow precedent. He claims this court

wrongly decided Varela for a variety of reasons, including misguided reliance on

other circuit cases and failure to properly apply Strickland. Alternatively, he

argues even if the court properly decided Varela at the time, subsequent changes

in immigration law have rendered the decision unsuitable today. 3

       2
         Unlike Mr. Abtew, Mr. Broomes filed his § 2254 petition before his state court
conviction expired, thus satisfying the statute’s “in custody” requirement. See Carafas v.
LaVallee, 391 U.S. 234, 238-39 (1968) (holding “in custody” is determined from the date
a habeas petition is filed).

       3
         Although the State of New York asks us to affirm the district court’s decision on
the merits, alternatively it requests we dismiss Mr. Broomes’ § 2254 petition for failure to

                                            -10-
       We granted Mr. Broomes a certificate of appealability on the issues of

whether his counsel was ineffective through defective performance, and if so,

whether such ineffective assistance prejudiced his defense. We review the district

court’s legal determinations in denying habeas relief under § 2254 de novo.

Garcia v. Shanks, 351 F.3d 468, 471 (10th Cir. 2003). The Supreme Court

determined “[w]here, as here, a defendant is represented by counsel during the

plea process and enters his plea upon the advice of counsel, the voluntariness of

the plea depends on whether counsel’s advice ‘was within the range of

competence demanded of attorneys in criminal cases.’” Hill v. Lockhart, 474 U.S.

52, 56 (1985). We considered this range of competence in Varela, and held

“deportation is a collateral consequence of the criminal proceeding and therefore

the failure to advise does not amount to ineffective assistance of counsel.”

Varela, 976 F.2d. at 1358.



       With these standards in mind, we summarily reject Mr. Broomes’ claim that

Varela was wrongly decided. Even if we found his arguments persuasive (which

we do not), one appellate panel cannot disturb the decision of another panel



exhaust his state court remedies. Because § 2254 permits us to deny Mr. Broomes’
claims on the merits, notwithstanding his failure to exhaust available state court remedies,
28 U.S.C. § 2254(b)(2), we elect to decide the issue on the merits and thereby decline to
examine the issue of exhaustion.


                                            -11-
“absent en banc reconsideration or a superseding contrary decision by the

Supreme Court.” In re Smith, 10 F.3d 723, 724 (10th Cir.1993) (per curiam).



       Second, and contrary to Mr. Broomes’ argument, the Antiterrorism and

Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 did not alter the collateral nature of

deportation to a criminal proceeding. A consequence is collateral if it “remains

beyond the control and responsibility of the district court in which that conviction

was entered.” United States v. Gonzalez, 202 F.3d 20, 27 (1st Cir. 2000). State

courts have no more control over whether a criminal defendant will be deported

today than they did prior to the 1996 Acts. Accordingly, deportation remains a

collateral consequence of a criminal conviction, and counsel’s failure to advise a

criminal defendant of its possibility does not result in a Sixth Amendment

deprivation. 4 For these reasons, we conclude Mr. Broomes’ counsel’s



       4
          Our decision is consistent with our sister circuits that considered whether the
Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and
Immigrant Responsibility Act transformed deportation into a direct consequence of a
criminal conviction. See El-Nobani v. United States, 287 F.3d 417, 421 (6th Cir. 2002)
(holding “it is clear that deportation is not within the control and responsibility of the
district court, and hence, deportation is collateral to a conviction”); United States v.
Amador-Leal, 276 F.3d 511, 516 (9th Cir.) (stating “no matter what changes have been
wrought by [the two Acts], removal remains the result of another governmental agency’s
subsequent actions”), cert. denied, 535 U.S. 1070 (2002); Gonzalez, 202 F.3d at 27
(holding deportation “remains a collateral consequence”).

                                           -12-
performance was not deficient, and, therefore, we need not address the prejudice

prong of Strickland, 466 U.S. at 687, 697.



      In conclusion, we AFFIRM the district court’s order dismissing Mr.

Broomes’ habeas petition. Similarly, we AFFIRM the district court’s order

dismissing Mr. Abtew’s § 2241 petition, deny Mr. Abtew a certificate of

appealability on his § 2254 claim, and DISMISS his appeal. We deny the State

of New York’s motion to enlarge the record as unnecessary for the disposition of

this appeal.




                                       -13-
