United States District Court, N.D. Illinois, Eastern Division
May 3, 2005.
UNITED STATES OF AMERICA Plaintiff,
MISAEL ROQUE-ESPINOZA, Defendant.
The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Misael Roque-Espinoza (hereinafter, "Roque-Espinoza"
or "Petitioner") pleaded guilty to a charge of illegal re-entry
following deportation in violation 8 U.S.C. § 1326(a) and (b) (2)
based upon Roque-Espinoza's previous removal from the United
States. Roque-Espinoza later moved to withdraw his guilty plea
under the authority of Immigration and Naturalization Service v.
St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001), but this court
denied that motion and the Seventh Circuit affirmed his
conviction and sentence on direct appeal. United States v.
Roque-Espinoza, 338 F.3d 724 (7th Cir. 2003). Roque-Espinoza has
now petitioned the court for habeas relief pursuant to
28 U.S.C. § 2255. For the reasons explained below, the petition is denied.
On June 15, 1995, Roque-Espinoza pleaded guilty to state
charges of marijuana distribution and attempted murder. After
serving three years in the Illinois Department of Corrections,
Petitioner, who had lived in the United States since he was eight
months old, was ordered to return to his native Mexico.
Roque-Espinoza, 338 F.3d at 725.
Roque-Espinoza was ordered removed from the United States after
a hearing before an Immigration Judge ("IJ") during which he was
represented by a lawyer. Id. After the IJ ordered his removal to Mexico, Roque-Espinoza's lawyer requested that the IJ
grant his client discretionary relief under § 212(c) of the
Immigration and Naturalization Act, 8 U.S.C. § 1182(c) (1994)
(repealed). Id. At the time of Roque-Espinoza's conviction in
1994, he was eligible for relief under § 212(c) because he had
been lawfully within the United States for seven consecutive
years and he had not served five years' imprisonment.*fn1
The IJ denied that request on the ground that the provision
making such relief available had been repealed, but advised
Roque-Espinoza that he was entitled to appeal the removal order.
Id. Roque-Espinoza expected his lawyer to file such an appeal,
but counsel never did so. Id.
Roque-Espinoza was warned prior to his removal that he could
re-enter the United States only with the permission of the
Attorney General, but returned nevertheless without such
permission sometime in 1999. Id. at 726. By October 14, 2000,
Roque-Espinoza was again arrested, this time for drunk driving,
and ultimately charged with unlawful re-entry into the United
States without the permission of the Attorney General, in
violation of 8 U.S.C. § 1326(a) and (b) (2). He pleaded guilty to
these charges on May 10, 2001. Id. Three and one half months after Roque-Espinoza entered his
guilty plea, he sought leave to withdraw the plea. Id. He cited
the Supreme Court's decision in St. Cyr, 533 U.S. 289 (2001),
decided after entry of his guilty plea, where the Court held that
an alien who had pleaded guilty to an aggravated felony prior to
passage of the Antiterrorism and Effective Death Penalty Act
("AEDPA") and Illegal Immigration Reform and Immigrant
Responsibility Act ("IIRIRA") was entitled to seek discretionary
relief from deportation, despite language in AEDPA and IIRIRA
that repealed provisions for such discretionary relief. As the
Seventh Circuit explained, "St. Cyr held that the repeal of §
212(c) discretionary relief from removal contained in the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996),
does not apply retroactively to defendants who pleaded guilty to
criminal charges prior to the act's passage." Id., (quoting
St. Cyr, 533 U.S. at 326). Roque-Espinoza argued before this
court that St. Cyr establishes that his 1998 removal was
invalid because it was premised on the IJ's erroneous belief that
he was ineligible for discretionary relief from removal. Id.
Given the date on which he entered a guilty plea in state court,
Roque-Espinoza argued, under the rationale of St. Cyr, he
remained eligible to apply for such relief. This court concluded
that St. Cyr did not support Roque-Espinoza's motion to
withdraw his guilty plea and denied that motion, and the Seventh
Circuit affirmed that decision on direct appeal. Id.
Roque-Espinoza filed his petition under 28 U.S.C. § 2255 in
Under section 2255, an individual convicted of a federal crime
is permitted to move the district court to vacate, set aside, or
correct his or her sentence on the grounds that the sentence was
imposed in violation of the Constitution or the laws of the
United States. 28 U.S.C. § 2255. Such collateral relief is only available, however, where there was "an
error of law that is jurisdictional, constitutional, or
constitutes a `fundamental defect which inherently results in a
complete miscarriage of justice.'" Bischael v. United States,
32 F.3d 259, 263 (7th Cir. 1994) (quoting Borre v. United
States, 940 F.2d 215, 217 (7th Cir. 1991)). Relief under section
2255 may be granted to remedy only an error of law that is a
"fundamental defect which inherently results in a complete
miscarriage of justice," Arango-Alvarez v. United States,
134 F.3d 888, 891 (7th Cir. 1998) (quoting Davis v. United States,
417 U.S. 333, 346 (1974)). If this court finds that such grounds
exist, it "shall vacate and set aside and shall discharge the
prisoner or resentence him or grant a new trial or correct the
sentence as may appear appropriate." 28 U.S.C. 2255.
Before a district court will review a claim on its merits, the
issue must have "been raised in a procedurally appropriate
manner." Theodorou v. United States, 887 F.2d 1336, 1339 (7th
Cir. 1989). A section 2255 motion is not a substitute for a
direct appeal. Fountain v. United States, 211 F.3d 429, 433
(7th Cir. 2000) (citing Barnickel v. United States,
113 F.3d 704, 706 (7th Cir. 1997)). Thus, a section 2255 motion cannot
raise: "(1) issues that were raised on direct appeal, absent a
showing of changed circumstances; (2) nonconstitutional issues
that could have been but were not raise on direct appeal; . . .
and (3) constitutional issues that were not raised on direct
appeal, unless the section 2255 petitioner demonstrates cause
for the procedural default as well as actual prejudice from the
failure to appeal." Belford v. United States, 975 F.2d 310, 313
(7th Cir. 1992) (emphasis in original). Although the court will
liberally construe a prisoner's pro se petition, Haines v.
Kerner, 404 U.S. 519, 520, 92 S. Ct. 594 (1972), the burden
still rests with Roque-Espinoza to show that he is entitled to
habeas relief. Roque-Espinoza presents the following three arguments on this
section 2255 appeal: (1) that under the Supreme Court's decision
in St. Cyr he should have been permitted to withdraw his guilty
plea and launch a collateral attack on the deportation; (2) that
his sentence was an ex post facto violation; and (3) that he
was provided ineffective counsel. The court will now address each
argument in turn. Each of these arguments relates to Petitioner's
failure to obtain § 212(c) relief, a matter addressed by the
Seventh Circuit on direct appeal. The court nevertheless
addresses the arguments individually below.
A. Abuse of Discretion
Roque-Espinoza first argues that this court abused its
discretion in denying his timely motion to withdraw his guilty
plea pursuant to the St. Cyr decision. Specifically,
Roque-Espinoza contends that St. Cyr presented a fair and just
reason necessary to withdraw his guilty plea as required by Rule
11 of the Federal Rules of Criminal Procedure. (Supplemental
Memorandum of Points and Authorities Supporting Motion to Vacate,
Set Aside, or Correct Sentence By Person In Federal Custody
(hereinafter, "Def.'s Memorandum), at 10.) Thus, he asserts he
should have been allowed to launch a collateral attack on the
deportation hearing he alleges was "tainted" by the IJ's
misinforming him that he was not eligible for discretionary
relief. (Id. at 9.)
As noted above, Roque-Espinoza made this argument on direct
appeal. He asserted that that St. Cyr established that the IJ
erred in finding him ineligible for discretionary relief from
removal. See Roque-Espinoza, 338 F.3d at 727. Roque-Espinoza
argued that this error was enough by itself to invalidate his
original removal and that the IJ's mistake was so serious that it
tainted the entire removal proceeding and deprived him of due
process. Petitioner noted, further, the Supreme Court's holding
in United States v. Mendoza-Lopez, 481 U.S. 828 (1987), that
the government may not rely on a prior deportation as an element of the crime of unlawful
re-entry unless the proceedings leading up to the deportation
comported with principles of due process. Id. (citing
Mendoza-Lopez, 481 U.S. at 837). As amended in 1996,
8 U.S.C. § 1326(d) expressly permits an alien to collaterally attack the
validity of his deportation order when prosecuted for illegal
reentry. Id. Such a collateral attack on an underlying removal
is authorized where (1) the alien has exhausted the
administrative remedies that offer relief from the removal order;
(2) the removal order was the result of proceedings that deprived
the alien of an opportunity for judicial review; and (3) there is
a showing of fundamental unfairness. 8 U.S.C. § 1326(d)(1)-(3).
Interpreting this statutory language, the Seventh Circuit has
emphasized that a alien must exhaust his administrative remedies
before seeking review of a removal order. Mojsilovic v. INS,
156 F.3d 743, 748 (7th Cir. 1998). An alien who fails to raise an
issue before the Board has not fulfilled this exhaustion
requirement. Id. "Although due process claims do not usually
require exhaustion because the Board cannot adjudicate
constitutional issues, the requirement applies when the
`petitioner's claim involves procedural errors correctable by the
administrative tribunal.'" Id. (quoting Castaneda-Suarez v.
INS, 993 F.2d 142, 144 (7th Cir. 1993)).
In response to this argument on direct appeal from his
conviction, the Seventh Circuit held that Roque-Espinoza failed
to exhaust the administrative remedies available to him, "and the
circumstances of his failure do not come close to raising a due
process issue." Roque-Espinoza, 338 F.3d at 727. In so holding,
the Seventh Circuit noted that both Roque-Espinoza and his lawyer
were informed of his right to pursue an appeal of the IJ's
immigration order with the Board of Immigration Appeals and that
his lawyer indicated that Roque-Espinoza would appeal the
decision. Id. The Seventh Circuit noted that because the IJ
informed Roque-Espinoza that he was not eligible for discretionary relief from removal, "he should have realized that
avenues of judicial review were available to him." Id. That
Roque-Espinoza's lawyer failed to appeal the order as promised
did not deprive Roque-Espinoza of pursuing these other avenues of
judicial review. Therefore, the Seventh Circuit denied
Roque-Espinoza's claim in its entirety.
Roque-Espinoza now attempts to make this same argument on
collateral review of his conviction. Because Roque-Espinoza has
already litigated this issue on the same grounds before the
Seventh Circuit, he may not re-litigate the issue here.
B. Ex Post Facto Violations
Roque-Espinoza's second argument is that the retroactive
application of the IIRIRA, which repealed the availability of a
discretionary waiver of deportation under § 212(c), violates the
constitutional prohibitions against ex post facto laws. (Def's
Memorandum, at 14.) As addressed above, under St. Cyr an alien
who, like Petitioner here, pleaded guilty to an aggravated felony
before the repealer of the discretionary waiver authority, may
nevertheless apply for § 212 (c) relief if he would have been
eligible for that relief at the time of his plea. In Montenegro
v. Ashcroft, 355 F.3d 1035 (7th Cir. 2004), the Seventh Circuit
considered an appeal from a deportation order brought by an
individual who, because he was convicted by a jury of the
aggravated felony, did not fall within that exception. In
Montenegro, the defendant was convicted by an Illinois jury in
April 1996 on drug possession and intent to distribute charges,
and sentenced to 20 years' imprisonment. Id. at 1036. As a
result of his conviction, the INS commenced removal proceedings
under 8 U.S.C. § 1227(a)(2)(A)(iii), the statute which provides
for the removal of an alien convicted of an aggravated felony. On
appeal from the denial of his petition for relief from the
removal order, Montenegro argued that the repealer of the
provision authorizing discretionary waivers of deportation to aliens constituted an ex post facto violation. The
Court of Appeals rejected that argument, explaining that the ex
post facto clause applies only to criminal laws, and therefore is
not available in removal proceedings because they are classified
as civil actions. 355 F.3d 1035, 1037 (7th Cir. 2004).
As explained earlier, Petitioner Roque-Espinoza himself falls
into the exception recognized in St. Cyr, and was eligible
despite the repeal of § 212(c) to appeal from the removal order
in his case. Nevertheless, in any event, the Seventh Circuit's
opinion in Montenegro recognizes that ex post facto laws do not
apply to removal proceedings, so any argument that the repealer
of § 212(c) violates the ex post facto clause would fail.
D. Ineffective Assistance of Counsel
Roque-Espinoza's final argument is that his trial, appellate,
and immigration hearing counsel caused him to lose his direct
appeal by failing to litigate a due process argument. (Def.'s
Memorandum, at 15.) The entirety of Roque-Espinoza's due process
complaints stem from his counsel's failure to appeal the IJ's
1996 deportation order after stating he would do so. Had his
attorney followed through with his intentions and filed an appeal
with the Board of Immigration Appeals, Roque-Espinoza argues, he
would have been granted the § 212 discretionary relief that the
IJ had mistakenly deemed he was ineligible to receive. Had § 212
discretionary relief been granted back in 1998, Roque-Espinoza
reasons, he would not have been guilty of illegal reentry when he
returned to the United States in 1999.
An alien in a deportation hearing has no Sixth Amendment right
to counsel, but aliens are entitled to Fifth Amendment due
process in deportation proceedings. Mojsilovic v. INS,
156 F.3d 743, 748 (7th Cir. 1998); Nativi-Gomez v. Ashcroft,
344 F.3d 805, 807 (8th Cir. 2003) (citing Reno v. Flores, 507 U.S. 292, 306, 113 S. Ct. 1439 (1993)); Mohammed
v. Gonzales, 400 F.3d 785 (9th Cir. 2005); Dakane v. U.S.
Attorney General, 399 F.3d 1269, 1273 (11th Cir. 2004). In order
to establish that his due process rights were violated,
Petitioner must first establish the existence of a protected
liberty or property interest. Nativi-Gomez, 344 F.3d at 808
(citations omitted). "The ground for a constitutional claim, if
any, must be found in statutes or other rules defining the
obligations of the authority charged with exercising clemency."
Id. (quoting Dumschat, 452 U.S. at 465). A discretionary
privilege cannot create a constitutional entitlement, even if
that privilege has been granted generously in the past. Id.
(citing Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 464-67,
101 S. Ct. 2460 (1981)). Indeed, several courts have explicitly
recognized that "there is no protected liberty or property
interest" in the right to seek discretionary relief under §
212(c), and, hence, no basis for finding a due process violation
where an alien is deprived of that right. United States v.
Wilson, 316 F.3d 506, 509 (4th Cir. 2003) (quoting Smith v.
Ashcroft, 295 F.3d 425, 430 (4th Cir. 2002)); United States v.
Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir. 2002), cert. denied,
537 U.S. 1135 (2003) (holding that Section 212(c) relief is not a
right protected by due process "because it is available within
the broad discretion of the Attorney General"); United States v.
Roque-Espinoza, 338 F.3d 724, 729 (7th Cir. 2003) (opining that
"it would be hard to show that the loss of a chance at wholly
discretionary relief is the kind of deprivation of liberty or
property that the due process clause is designed to protect");
Oguejiofor v. Attorney General, 277 F.3d 1305, 1309 (11th Cir.
2002) ("[A]n alien has no constitutionally protected right to
discretionary relief or to be eligible for discretionary
relief."); but see United States v. Lepore, 304 F. Supp. 2d 183
(D. Mass. 2004) in a case where INS officials failed to advise
the alien of his right to appeal his deportation order,
(criticizing Wilson as an effective foreclosure of collateral
attack). If there is no liberty or property interest at stake, then
counsel's failure to seek discretionary relief through an appeal
to the BIA does not violate due process. Absent a due process
violation, an alien cannot establish fundamental unfairness and
his collateral attack fails.
For the foregoing reasons, the court denies Roque-Espinoza's
petition to vacate, correct, or set aside his sentence pursuant
to 28 U.S.C. § 2255 in its entirety.