FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HUGO RANGEL RESENDIZ, 

Petitioner-Appellant, No. 03-55136

v. D.C. No.

LEONARD KOVENSKY, Acting  CV-02-00104-PA

Director, Immigration and OPINION Naturalization Service,

Respondent-Appellee. 

Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

Argued and Submitted

April 8, 2005—Pasadena, California

Filed June 27, 2005

Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,

and Stephen S. Trott, Circuit Judges.

Opinion by Judge Trott

7609
COUNSEL

Phillip A. Trevino, Los Angeles, California, for the petitionerappellant. 

Frank M. Travieso, Assistant United States Attorney, Los

Angeles, California, for the respondent-appellee. 

OPINION

TROTT, Circuit Judge:

OVERVIEW

Hugo Rangel Resendiz appeals the district court’s dismissal

of two petitions for habeas corpus — one under 28 U.S.C.

§ 2254, naming the State of California as the respondent, and

a second under 28 U.S.C. § 2241 against the Bureau of Immigration and Naturalization Service (“INS).1

 We have jurisdiction pursuant to 28 U.S.C. § 2253. 

We conclude that (1) Resendiz was not “in custody pursuant to the judgment of a State court” when he filed his § 2254

petition, and he is not entitled to an exception from the in custody requirement; (2) the district court did not err in construing Resendiz’s § 2254 petition as a petition against the INS

under § 2241 rather than as one for a writ of coram nobis; and

1On March 1, 2003, the detention and removal duties of the INS were

transferred to the newly-formed Bureau of Immigration and Customs

Enforcement. 116 Stat. 2135, Pub. L. 107-296 § 441 (2002). Because the

INS was the operative agency at the time of the events in this case, we

refer to the relevant agency as “the INS” for ease of reference. 

7612 RESENDIZ v. KOVENSKY
(3) the enactments of the Antiterrorism and Effective Death

Penalty Act (AEDPA) and the Illegal Immigration Reform

and Immigrant Responsibility Act (IIRIRA) do not change the

long standing principle that a petitioner may not collaterally

attack his state court conviction in a § 2241 petition against

the INS. Accordingly, we affirm. 

BACKGROUND

Resendiz was a lawful permanent resident when he pled

guilty to narcotics offenses in the Orange County Superior

Court on June 30, 1997. In re Resendiz, 25 Cal. 4th 230, 235

(2001). Resendiz claims that before entering his plea, he

expressed concern to his attorney, Leonard Basinger, about

losing his green card as a result of the offense. Basinger inaccurately informed Resendiz that the guilty plea would not

adversely affect his immigration status. The state court judge

informed Resendiz and five other defendants that their convictions could result in deportation, but Resendiz nevertheless

took Basinger’s erroneous advice and pled guilty. See id. at

235-37. 

As a result of his plea, the state trial court sentenced

Resendiz to 180 days imprisonment and three years probation,

with credit for time served. In addition, California Health and

Safety Code section 11590 required Resendiz to register as a

narcotics offender for a period of five years subsequent to the

completion of his three year probation term. 

While Resendiz was serving his state sentence, the INS

served him with a Notice to Appear, which declared that he

was a removable alien due to his conviction for a narcotics

offense, which qualified as an aggravated felony under 8

U.S.C. § 1227 (a)(2)(B)(i) and (a)(2)(A)(iii). Consequently,

on a date not clear from the record, Resendiz was transferred

to INS custody at the completion of his 180 days in state custody. Id. at 236. 

RESENDIZ v. KOVENSKY 7613
While in INS custody and represented by new counsel,

Resendiz began pursuing state court relief on the grounds that

Basinger provided ineffective assistance of counsel in violation of the Sixth Amendment by telling Resendiz that his

guilty plea would not affect his immigration status. Id.

Resendiz’s state remedies remained unexhausted until April 2,

2001, when the California Supreme Court issued its decision.

Id. The state court concluded that even assuming Basinger’s

performance was constitutionally deficient, Resendiz failed to

show prejudice because he failed to show that he would have

proceeded to trial absent the erroneous advice. Id. at 252-54.

By the time the state court issued its final decision,

Resendiz’s state sentence of 180 days and 3 years probation,

imposed in 1997, had long since expired. 

Nevertheless, Resendiz filed a § 2254 habeas petition in the

district court in February of 2002, naming the State as respondent. The district court dismissed the petition because

Resendiz was no longer “in custody pursuant to the judgment

of a State court.” Because Resendiz was in INS custody, however, the court construed the petition as a § 2241 petition and

granted Resendiz leave to amend to allow him to name the

Director of the INS as the proper respondent. Resendiz

objected to the construction of his petition as a § 2241 petition, arguing that the State was the proper respondent. After

objecting, Resendiz amended the petition, naming the INS as

the respondent, but he continued to assert that the ineffective

assistance of counsel during the state proceedings provided

grounds for relief. 

Sympathizing with Resendiz’s unfortunate procedural situation, the district court nonetheless concluded that it lacked

jurisdiction over the § 2241 petition and reaffirmed its earlier

decision to dismiss the § 2254 petition. The court determined

that, pursuant to our decision in Contreras v. Schiltgen, 122

F.3d 30 (9th Cir. 1997), aff’d on add’l grounds in Contreras

v. Schiltgen, 151 F.3d 906 (9th Cir. 1998) (Contreras II), the

state conviction could not be collaterally attacked in a § 2241

7614 RESENDIZ v. KOVENSKY
petition against the INS, and that Resendiz’s petition thus provided no grounds for relief. Moreover, the district court concluded that because Resendiz was no longer in custody

pursuant to the state court judgment, it lacked jurisdiction

over the § 2254 petition that otherwise would have been available to attack the state conviction. Thus, Resendiz was without federal review. 

We granted a certificate of appealability on two issues: (1)

whether Resendiz’s pending deportation on the grounds of his

state conviction can be construed as “custody pursuant to the

judgment of a State court,” and (2) whether the district court

erred in construing Resendiz’s § 2254 petition as a proceeding

against the INS under § 2241. Resendiz briefed additional,

related issues here and requests that we broaden the certificate

of appealability. We address each of his contentions in turn.

DISCUSSION

A. Standard of Review

We review the district court’s dismissal of a petition for a

writ of habeas corpus de novo. Hunt v. Pliler, 384 F.3d 1118,

1123 (9th Cir. 2004). 

B. Analysis 

Resendiz makes five arguments in his attempt to secure

elusive federal review: (1) that he satisfies § 2254’s “in custody pursuant to the judgment of a state court” requirement

because his transfer to INS custody, after serving a state sentence for a drug trafficking crime, was the direct and mandatory consequence of the state court judgment; (2) that

California’s mandatory narcotics offender registration law satisfies the “in custody” requirement of § 2254; (3) that he is

entitled to an exception from the “in custody” requirement of

§ 2254; (4) that the district court erred in construing the

§ 2254 petition as a petition against the INS under § 2241 and

RESENDIZ v. KOVENSKY 7615
should have construed it as a petition for a writ of coram

nobis; and (5) that we should revisit the holding of Contreras

and conclude that the state court conviction may be collaterally attacked through his § 2241 petition. 

1. Custody Requirement of § 2254

[1] Pursuant to 28 U.S.C. § 2254(a), “[t]he Supreme Court,

a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a

person in custody pursuant to the 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.” (emphasis added). This “in custody” requirement has been interpreted

to mean that federal courts lack jurisdiction over habeas corpus petitions unless the petitioner is “under the conviction or

sentence under attack at the time his petition is filed.” Maleng

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

[2] It is well-established that “once the sentence imposed

for a conviction has completely expired, the collateral consequences of the conviction are not themselves sufficient to render an individual ‘in custody’ for the purposes of a habeas

attack upon it.” Id. at 492 (emphasis added); Feldman v. Perrill, 902 F.2d 1445 (9th Cir. 1990) (interpreting Maleng and

concluding that under Maleng, even when collateral consequences significantly harm habeas petitioners, the harm is not

the relevant “in custody” inquiry). Immigration consequences,

such as deportation, have long been viewed as “collateral,”

and thus are not themselves sufficient to render an individual

“in custody.” See Fruchtman v. Kenton, 531 F.2d 946, 949

(9th Cir. 1976) (holding that immigration consequences —

deportation — of a criminal conviction are collateral consequences because “the consequence in issue ‘was not the sentence of the court which accepted the plea but of another

agency over which the trial judge has no control and for

which he has no responsibility’ ” (citation omitted)). While

Maleng noted that collateral consequences could prevent a

7616 RESENDIZ v. KOVENSKY
petition — filed while the petitioner was in state custody —

from becoming moot after a petitioner is released from custody, Maleng foreclosed any argument that collateral consequences could satisfy the in custody requirement for a petition

filed after the expiration of the state sentence. See 490 U.S.

at 492. 

Recognizing that collateral consequences are insufficient,

Resendiz argues that immigration consequences can no longer

be considered collateral. He points out that the AEDPA and

IIRIRA eliminated the small amount of discretion in the

Executive and Judicial Branches when dealing with individuals convicted of the offenses for which Resendiz was convicted. This change, he contends, renders immigration

consequences “direct and mandatory” rather than “collateral.”

Thus, he contends that the immigration consequences should

now be considered sufficient to render him “in custody pursuant to the judgment of a State court.” 

[3] Contrary to Resendiz’s assertion, immigration consequences of a state conviction continue to be collateral. As

originally stated in Fruchtman, these consequences arise from

the action of an independent agency — indeed, in the case of

a state conviction, an independent sovereign — and are consequences over which the state trial judge has no control whatsoever. See United States v. Amador-Leal, 276 F.3d 511, 515-

16 (9th Cir. 2002) (holding that Fruchtman remains good law

post-AEDPA and post-IIRIRA). 

We explained in Amador-Leal: “whether an alien will be

removed is still [after AEDPA and IIRIRA] up to the INS.

There is a process to go through, and it is wholly independent

of the court imposing the sentence . . . . Removal is not part

of the sentence.” Id. at 516 (emphasis added). Extending that

holding, we have similarly concluded that, because immigration consequences remain collateral, the failure of counsel to

advise his client of the potential immigration consequences of

a conviction does not violate the Sixth Amendment right to

RESENDIZ v. KOVENSKY 7617
effective assistance of counsel. United States v. Fry, 322 F.3d

1198, 1200-01 (9th Cir. 2003). 

Resendiz claims that Amador-Leal and Fry are inapposite

because the conclusion that immigration consequences remain

collateral post-AEDPA and post-IIRIRA was not made in the

context of an “in custody” determination. This is a distinction

without a difference, and we see no reason why the rationale

of Amador-Leal and Fry does not apply with equal force here.

Nothing about an “in custody” determination would change

the rationale of those cases, namely that the immigration consequences are the result of an independent agency, not part of

the state sentence. 

The Tenth Circuit’s decision in a factually similar case,

Broomes v. Ashcroft, 358 F.3d 1251 (10th Cir. 2004), bolsters

our conclusion. Like Resendiz, the petitioner in Broomes,

Asfaw Abtew, claimed that his trial counsel in a state court

proceeding failed to inform him of the immigration consequences of a guilty plea. Id. at 1253. Relying on a number of

cases, including Maleng and our prior decision in Contreras,

the Tenth Circuit held that Abtew was not “in custody pursuant to the judgment of a State court” because, like Resendiz,

Abtew’s state sentence had fully expired. Id. at 1255-56. Furthermore, with respect to a second petitioner in that case, the

Tenth Circuit concluded, as we did in Amador-Leal and Fry,

that the AEDPA and IIRIRA “did not alter the collateral

nature of deportation to a criminal proceeding.” Id. at 1256.

Finally, Resendiz contends that Poodry v. Tonawanda

Band of Seneca Indians, 85 F.3d 874 (2d Cir. 1996), supports

his position. Poodry is inapplicable. In Poodry, the Second

Circuit applied ordinary habeas corpus principles and concluded that an Indian tribe member who had been sentenced

by the tribe to permanent tribal banishment was “in custody.”

Id. at 893-95. The court held that the threat of banishment by

the tribe was a severe restraint on liberty, and thus, federal

habeas corpus review was appropriate. Id.

7618 RESENDIZ v. KOVENSKY
The holding in Poodry is not at all remarkable, nor does it

help Resendiz. The Poodry court examined the act of a single

sovereign (the tribe), and determined that the severe restraint

imposed by the threat of banishment was enough to put the

petitioner in custody pursuant to that sovereign’s judgment.

The holding mirrors the principle that an alien subject to an

order of deportation by the INS may seek habeas relief under

§ 2241 alleging unlawful detention by the INS, because that

order is a severe restraint on his liberty. See, e.g., INS v. St.

Cyr, 533 U.S. 289, 308-14 (2001) (holding that jurisdiction to

challenge an order of deportation remains under § 2241 postAEDPA and post-IIRIRA). 

[4] The material difference between cases such as Poodry

and St. Cyr and Resendiz’s case is that, severe consequences

notwithstanding, two independent agencies (indeed, sovereigns) are operating here. The state’s action is entirely independent of the INS’s action initiating deportation proceedings,

and the state has nothing to do with deportation. Thus, while

Resendiz is indeed threatened with banishment, it is not a

threat imposed by the state court, and there is nothing unlawful about the INS detention. 

[5] Consequently, we must reject Resendiz’s argument that

the immigration consequences of his state conviction render

him “in custody pursuant to the judgment of a State court” for

purposes of § 2254. 

2. Narcotics Offender Registration 

Resendiz contends that the requirement that he register for

five years as a narcotics offender renders him “in custody”

pursuant to the state court judgment for purposes of § 2254

because (1) the restriction is one not shared by the public generally, and (2) it is a punishment. See Williamson, 151 F.3d

at 1182 (citing Jones v. Cunningham, 371 U.S. 236, 240

(1963)) (explaining that whether a petitioner is “in custody”

RESENDIZ v. KOVENSKY 7619
depends on whether he is subject to a restraint “not shared by

the public generally”). His contentions fail. 

California Health and Safety Code section 11590 provides

in relevant part that:

any person who is convicted in the State of California of [one of several enumerated narcotics offenses]

. . . shall within 30 days of his or her coming into

any county or city, or city and county in which he or

she resides or is temporarily domiciled for that

length of time, register with the chief of police of the

city in which he or she resides or the sheriff of the

county if he or she resides in an unincorporated area.

The “registration” requires that the person give 

a statement in writing signed by such person, giving

such information as may be required by the Department of Justice, and . . . the fingerprints and photograph of such person. . . . If any person required to

register hereunder changes his residence address he

shall inform, in writing within 10 days, the law

enforcement agency with whom he last registered of

his new address. 

Cal. Health & Safety Code § 11594. 

Initially, to the extent that he relies on the punitive nature

of the statute as a reason to satisfy the custody requirement,

Resendiz’s claim that this statute is punitive in nature is

wrong. The California case he cites for that proposition, People v. Villela, 30 Cal. App. 4th 54, 60 (1994), applied the

analysis outlined by In re Reed, 33 Cal. 3d 914 (1983), and

did indeed conclude that the narcotics registration statute was

punitive in nature. However, the California Supreme Court

disapproved of the Reed analysis in People v. Catellanos, 21

Cal. 4th 785, 797-99 (1999), shattering Villela’s conclusion

7620 RESENDIZ v. KOVENSKY
that the narcotics registration law is punitive. In re Luisa Z.,

78 Cal. App. 4th 978 (2000), on the other hand, remains good

law, and concluded that the narcotics registration statute at

issue is not punitive in nature. Id. at 983. 

[6] Resendiz’s argument that the registration requirement

renders him in custody because it is a restriction not shared

generally by the public also fails. We have held previously

that several states’ sexual offender registration laws do not

render a habeas petitioner “in custody” because they are a collateral consequence of conviction that do not impose a severe

restraint on an individual’s liberty. See Henry v. Lungren, 164

F.3d 1240, 1242 (9th Cir. 1999) (holding that California sexual offender registration laws do not render registrant “in custody”); McNab v. Kok, 170 F.3d 1246 (9th Cir. 1999) (holding

the same with respect to Oregon sexual offender laws); Williamson v. Gregoire, 151 F.3d 1180, 1182-84 (9th Cir. 1998)

(holding the same with respect to Washington sexual offender

laws). 

There is no material difference between such laws and the

narcotics offender law at issue here to command a different

result. Indeed, the narcotics offender laws create far less

restraint than do the sexual offender registration laws. While

the sexual offenders in the cases cited above are required to

report within twenty-four hours of moving, a narcotics

offender under section 11590 has thirty days before he must

comply with the registration requirement. Similarly, sex

offenders are required to register for life whereas a narcotics

offender must report for only five years. Finally, the failure to

register as a narcotics offender may result in a misdemeanor

while a sex offender’s failure to register may result in either

a felony or misdemeanor conviction. Compare Cal. Health &

Safety Code § 11594 with Cal. Penal Code § 290. 

[7] Given that these sexual offender registration laws do

not render an individual “in custody,” despite their stringent

RESENDIZ v. KOVENSKY 7621
requirements, we see no reason to treat the far less restrictive

narcotics offender registration laws any differently. 

3. Exceptions to In Custody Requirement 

[8] The Supreme Court has identified two possible exceptions to the “in custody” requirement, neither of which apply

here. The first is a Gideon2 violation, or a complete failure of

counsel. Custis v. United States, 511 U.S. 485, 494-96 (1994).

That exception is concededly not present here. The second,

which Resendiz asserts, is a possible “rare” exception, not yet

defined, where “no channel of review was actually available

to a defendant with respect to a prior conviction.” Daniels v.

United States, 532 U.S. 374, 383 (2001); see also Johnson v.

United States, 544 U.S. ___, slip op. at 7 and n.4 (2005) (stating that the Court has recognized “only one exception,” the

Gideon exception, to the general prohibition on collateral

attacks and declining to explore the possible “rare” second

exception). 

[9] To the extent that this rare exception may exist, the

Court has suggested that it might be present where “a state

court . . . without justification, refuse[s] to rule on a constitutional claim that has been presented to it” or where a defendant “obtain[s] compelling evidence that he is actually

innocent.” Lackawanna County Dist. Atty. v. Coss, 532 U.S.

394, 405 (2001). There has been no suggestion that an exception exists where, as here, channels for review not only

existed, but also were pursued. In other words, although

Resendiz has no federal channel of review, it is quite clear

that he has had and availed himself of several channels of

state review. See In re Resendiz, 25 Cal. 4th at 236-38 (canvassing the paths of review Resendiz sought in state court).

Thus, Resendiz is not entitled to an exception from the “in

custody” requirement. 

2Gideon v. Wainwright, 372 U.S. 335 (1963). 

7622 RESENDIZ v. KOVENSKY
4. Writ of Coram Nobis 

Resendiz argues that the district court should not have construed his petition as one under § 2241, but instead should

have construed it as a writ of coram nobis, even though

Resendiz never asked the court to do so. Because Resendiz

did not contend below that his petition should be construed as

a writ of coram nobis, and because he provides no authority

suggesting that the district court might have a duty to sua

sponte raise the issue, we decline to address this claim. Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir.

1992) (“As a general rule, an appellate court will not hear an

issue raised for the first time on appeal.”).3

5. Collateral Attack of State Court Judgment 

Finally, Resendiz contends, for the first time, that Contreras and Contreras II are not controlling post-AEDPA. He

urges us to revisit the holding of Contreras and conclude that

in a § 2241 petition, a petitioner may collaterally attack the

state court conviction that forms the basis for INS custody.

Resendiz recognizes that a three-judge panel ordinarily may

not overturn a prior Ninth Circuit decision, but urges us to do

so in light of intervening changes in the law, i.e., the AEDPA.

The facts of Contreras are indistinguishable from the

instant case: the petitioner in Contreras pled no contest to a

crime that would result in deportation. He later claimed that

his counsel provided ineffective assistance, rendering his plea

involuntary. However, like Resendiz, Contreras had completed his state sentence by the time his state remedies were

exhausted. Contreras, 122 F.3d at 31-32. 

3Our recent decision in United States v. Kwan, No. 03-50315, 2005 WL

1119652 (9th Cir. May 12, 2005), in which we held that coram nobis relief

was available under similar circumstances, does not affect our decision.

Unlike Kwan, Resendiz did not petition the district court for the writ of

coram nobis, but argued instead that the court should have so construed

his habeas petition sua sponte. 

RESENDIZ v. KOVENSKY 7623
[10] In Contreras, and in this case as well, “[t]he fact of

[petitioner’s state] conviction is sufficient basis for the INS to

detain him.” Id. at 32. Consequently, in Contreras, “there

[was] nothing unlawful about the INS’ holding Contreras in

custody.” Id. Accordingly, we held that, because the INS had

neither the authority nor the competence to inquire into the

facts of the conviction, no collateral attack was permissible.

Id.

[11] Nothing in the AEDPA or IIRIRA serves to undermine

the holding of Contreras. The long-standing prohibition on

collateral attack is premised on a need for finality. See, e.g.,

Lackawanna, 532 U.S. at 403 (explaining the reasons why

collateral attack is prohibited: preserving the integrity of the

judgment and ease of administration). The Supreme Court

recently reaffirmed this principle in Johnson, 544 U.S. ___,

slip op. at 7. Indeed, the Court concluded that the AEDPA’s

principal purposes — a need for finality — would be thwarted

“by maximizing the time that judgments are open to question.” Id. at slip op. 11. 

[12] Given this principle inherent in the AEDPA, courts

continue to cite Contreras with approval, apply the cases

upon which Contreras relied, and reach the same conclusion

in the post-AEDPA context. See Broomes, 358 F.3d at 1255

(concluding, in a post-AEDPA petition, that petitioner could

not collaterally attack his state court conviction in a § 2241

petition against the INS); Drakes v. INS, 330 F.3d 600, 605

(3rd Cir. 2003) (applying Daniels and Lackawanna and concluding that a post-AEDPA § 2241 petition could not collaterally attack an underlying state conviction). Accordingly, we

adhere to the holding of Contreras and affirm the district

court’s conclusion that Resendiz may not collaterally attack

his state conviction in a habeas petition against the INS under

§ 2241. 

CONCLUSION

For the reasons discussed, we conclude that (1) Resendiz

was not “in custody pursuant to the judgment of a State court”

7624 RESENDIZ v. KOVENSKY
for purposes of 28 U.S.C. § 2254; (2) that he is not entitled

to an exception from this requirement; and (3) that the district

court did not err in construing Resendiz’s petition as one arising under 28 U.S.C. § 2241. Finally, we reaffirm postAEDPA the holding of Contreras and Contreras II. 

AFFIRMED.

RESENDIZ v. KOVENSKY 7625