United States District Court, S.D. Ohio, Eastern Division
L. GRAHAM JUDGE
ORDER AND REPORT AND RECOMMENDATION
Elizabeth A. Preston Deavers United States Magistrate Judge
has filed the instant Motion to Vacate under 28 U.S.C.
§ 2255. (Doc. 91.) This matter is before the Court
on the instant motion, Respondent's Response in
Opposition (Doc. 94), Petitioner's Reply
(Doc. 95), and the exhibits of the parties. For the reasons
that follow, the Magistrate Judge RECOMMENDS that the
Motion to Vacate under 28 U.S.C. § 2255 (Doc.
91) be DISMISSED.
request for an evidentiary hearing is DENIED.
and Procedural History
pleaded guilty pursuant to the terms of his negotiated
Superseding Plea Agreement pursuant to Rule
11(c)(1)(C), to knowingly possessing with intent to
distribute 2500 grams of pentedrone, a Schedule I controlled
substance analogue, as defined in 21 U.S.C. § 802(32),
knowing that the substance was intended for human
consumption, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(C), and § 846. (See ECF Nos.
64, 75.) On February 4, 2014, the Court adopted, without
objections, the Magistrate Judge's recommendation to
accept Petitioner's guilty plea. Order (Doc.
79.) On April 25, 2014, pursuant to the agreement of the
parties, the Court imposed a sentence of 18 months
incarceration, to be followed by a term of three years
supervised release. Petitioner did not file an appeal. (Docs.
to Petitioner, he completed his prison sentence on that same
date, and was released into the custody of the Bureau of
Immigration and Customs Enforcement (“ICE”),
where he has remained since that time, awaiting deportation
on a November 24, 2015, removal order issued by the Board of
Immigration Appeals due to his underlying conviction in this
March 11, 2016, Petitioner filed the instant Motion to
Vacate under 28 U.S.C. § 2255. (Doc. 91.)
Petitioner asserts that, had he known of the elements
required to establish a conviction for the offense charged,
as set forth in McFadden v. United States, ___ U.S.
___, 135 S.Ct. 2298 (2015), he would not have pleaded guilty,
but would have proceeded to trial. Petitioner maintains that
his conviction constitutes a manifest injustice, because the
record fails to reflect a factual basis for his guilty plea,
his guilty plea was not knowing, intelligent, or voluntary
(because he was misinformed regarding the mens rea
required to establish a violation of the Analogue Act), and
his guilty plea was the product of the ineffective assistance
of counsel. According to Petitioner, the record reflects that
the Court misinformed him regarding the elements that the
prosecution would be required to establish a conviction on
the offense charged, and the facts fail to establish his
knowledge, as required under McFadden.
Petition (ECF No. 91, PageID# 488.) Petitioner
states that he was under the influence of a prescription for
“Remeron” at the time of guilty, which causes
confusion, problems concentrating or thinking, and memory
problems. (PageID# 493.) Petitioner claims that his attorney
pressured him into entering a guilty plea in order to avoid
jail time. Petitioner also asserts that his attorney
performed in a constitutionally ineffective manner by failing
to properly explain the elements of the offense charged or
object to an inadequate factual basis to support the mens
rea requirement of the statute at issue. (PageID# 494.)
the position of the Respondent that Petitioner's claims
fail to provide a basis for relief.
to § 2255(a),
[a] prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
defendant must be ‘in custody' for the conviction
or sentence under attack at the time his § 2255 motion
is filed.” United States v. Koertel, No.
13-CR-00346, 2016 WL 4524860, at *2 (E.D. Cal. Aug. 30,
2016)(holding that district court lacked jurisdiction to
consider § 2255 motion where the petitioner's
sentence had completely expired and he remained in the
custody of the Department of Homeland Security awaiting
removal proceedings)(citing Maleng v. Cook, 490 U.S.
488, 490-91 (1989); United States v. Krboyan, No.
10-cv-2016, 02-cr-5438, 2010 WL 5477692, at *4 (Dec. 30,
2010)). “When a petitioner's sentence for a
conviction has fully expired, the conviction may not be
directly challenged because the petitioner is no longer
‘in custody' pursuant to that conviction.”
Ferqueron v. Straub, 54 Fed.Appx. 188, 190 (6th Cir.
2002) (citing Lackawanna Cty. Dist. Attorney v.
Coss, 532 U.S. 394, 401 (2001)). A prisoner who has been
released on parole on his unexpired sentence fulfills the
“in custody” requirement for habeas corpus
review. A petitioner whose sentence has completely expired
prior to the filing of his habeas corpus petition, however,
does not. Maleng, 488 U.S. at 492-93. Moreover,
“[t]he collateral consequences of a conviction for
which the sentence has completely expired are insufficient to
render a petitioner ‘in custody' under §
2254(a).” Ferqueron, 2002 WL 31828191, at *1
(citing Maleng, 490 U.S. at 492).
here, a petitioner's immigration status constitutes a
collateral consequence of his conviction that is insufficient
to satisfy the “in custody” requirement for
federal habeas corpus proceedings. See Ikharo v.
DeWine, No. 2:12-CV-489, 2013 WL 2620264, at *2-3 (S.D.
Ohio June 11, 2013) (as applied to 28 U.S.C. § 2254)
(citing Camera v. New York, No. 11-cv-8235, 2012 WL
3242697, at *3 (S.D.N.Y. Aug. 9, 2012) (“[I]mmigration
detention is not ‘custody' for the purposes of
establishing jurisdiction to consider habeas petitions
challenging a state court conviction pursuant to 28 U.S.C.
§ 2254.”); Kandiel v. United States, 964
F.2d 794, 796 (8th Cir. 1992) (holding that deportation
proceedings constitute a collateral consequence of the
conviction insufficient to satisfy in custody requirement for
§ 2255 proceedings); United States v. Montoya,
891 F.2d 1273, 1293 (7th Cir. 1989); United States v.
Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988);
Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir.
1976); United States v. Santelises, 509 F.2d 703,
704 (2d Cir. 1975)(per curiam)); Mainali v.
Virginia, 873 F.Supp.2d 748, 7511-52 (E.D. Va. June 25,
2012) (same) (citing United States v. Esogbue, 357
F.3d 532, ...