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Jeronimo Vasquez v. William H. Ryan

March 20, 2012

JERONIMO VASQUEZ
v.
WILLIAM H. RYAN, JR., ET AL.



The opinion of the court was delivered by: Savage, J.

MEMORANDUM OPINION

Jeronimo Vasquez moves for reconsideration of our dismissal of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Vasquez, a noncitizen immigrant, seeks relief from a state court conviction, arguing that his lawyer's failure to inform him of the immigration consequences of his guilty plea constituted ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). Because Vasquez was not "in custody," we dismissed his petition for lack of subject matter jurisdiction. Vasquez then timely moved for reconsideration, arguing that we took an overly narrow view of the custody requirement. After a thorough review of the law and facts of this case, we conclude that our previous decision was correct. At the same time, we note that Vasquez's habeas petition was untimely. Therefore, we shall deny the motion for reconsideration.

Background

On June 11, 2002, Vasquez pleaded guilty to three drug-related offenses in the Court of Common Pleas of Bucks County. According to Vasquez, his public defender did not inform him before he pleaded guilty that, as a noncitizen immigrant, he might be deported as a result of his guilty plea. There is no question that his drug conviction renders him subject to deportation. See 8 U.S.C. § 1227(a)(2)(B)(i) (2006); Padilla v. Kentucky, 130 S.Ct. 1473, 1483 (2010).The government has taken no action to deport him.

On the same day he pleaded guilty, Vasquez was sentenced to two years probation. Two months later, he filed a petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541 et seq. (1997), claiming ineffective assistance of counsel. His petition was denied on January 17, 2003.

On March 31, 2010, the Supreme Court in Padilla v. Kentucky held that a defense attorney's failure to inform her client of the immigration consequences of his guilty plea may constitute ineffective assistance of counsel entitling the defendant to post-conviction relief. 130 S.Ct. at 1483-84. Exactly one year later, Vasquez filed his petition for writ of habeas corpus, arguing that Padilla established a right "newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review" under 28 U.S.C. § 2244(d)(1)(C). By the time he filed his petition, Vasquez had served his probationary sentence.

Standard of Review

Pursuant to Federal Rule of Civil Procedure 59(e), Vasquez moves for reconsideration of our dismissal of his petition for lack of subject matter jurisdiction. A Rule 59(e) motion is subject to the "sound discretion of the district court." Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d 267, 272 (3d Cir. 2001). A party may move the court to alter or amend a judgment under Rule 59(e) on one of three grounds: "(1) an intervening change in the law; (2) the availability of new evidence; or (3) the need to correct clear error of law or prevent manifest injustice." Cottrell v. Good Wheels, No. 11-3409, 2012 WL 171941, at *3 (3d Cir. Jan. 23, 2012) (per curiam) (citing N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). Without saying so, Vasquez relies on the third ground, arguing that we erroneously held that he was not in custody when he filed his habeas petition. He contends that he is in custody because he is excludable as a result of his criminal conviction. Consequently, he cannot travel outside the United States because he could not legally re-enter. He contends that these consequences are sufficient to satisfy the "in custody" requirement for habeas relief.

Discussion

A petition under 28 U.S.C. § 2241 is a vehicle for challenging the "execution" of the defendant's state court sentence, such as a denial of parole. Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005) (quoting Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001)). However, Vasquez does not attack the execution of his sentence. Rather, he challenges the validity of his underlying conviction. A petition for relief from an unlawful state court conviction is properly brought under 28 U.S.C. § 2254. Coady, 251 F.3d at 485-86.*fn1 Therefore, we shall analyze Vasquez's petition as one under § 2254.

Timeliness

Because we determined that Vasquez was not in custody, we did not address other issues raised by his petition in our original order, including whether the petition was timely filed. We now determine that Vasquez's petition was untimely.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year statute of limitations for filing a § 2254 habeas corpus petition. 28 U.S.C. § 2244(d)(1); Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005). The statute provides that the one-year period begins with the latest of one of four "triggering events:"

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant ...


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