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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

GUILLERMO MENDOZA,

Petitioner,

 v.

LOUIS WYNN,

Respondent. /

No. C 09-1336 MHP

MEMORANDUM & ORDER

Re: Petition For Writ Of Habeas Corpus

On March 26, 2009, petitioner Guillermo Mendoza filed a petition for a writ of habeas

corpus. Two weeks later, on April 20, 2009, petitioner filed an amended petition. For the reasons

stated below, the court DISMISSES his petition.

BACKGROUND

On June 12, 2002, petitioner was convicted in the Superior Court of San Mateo County for

possession of marijuana and possession of a firearm under California Health and Safety Code

section 11359 and California Penal Code section 12022(a)(2). Docket No. 3 (“Amended Petition”)

at 2. Petitioner plead no contest to the charges and was sentenced to 16 months in prison. Id.

Petitioner has since completed his sentence and is no longer in custody of the state. Id. It appears

that petitioner was deported on November 5, 2002, subsequent to his 2002 conviction.

Petitioner appears to be currently incarcerated at the Tucson Federal Correctional Institution

(“Tucson FCI”). Id. at 5. Although petitioner is challenging his California state court conviction,

Louis Wynn, the warden of the Tucson FCI has been substituted as the defendant. Id. at 1. 

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United States District Court

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Petitioner pled guilty to a violation of 8 U.S.C. section 1326 on January 1, 2008. United States of

America v. Mendoza-Baldivias, No. CR 07-1038-CKJ-CRP, Docket No. 65 (D. Ariz. May 28, 2009). 

Petitioner’s 2008 sentence includes a sentencing enhancement pursuant to 8 U.S.C. section

1326(b)(2), which calls for higher penalties for those whose removal was subsequent to a conviction

for commission of an aggravated felony.

LEGAL STANDARD

This court may entertain a petition for 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.” 28 U.S.C. § 2254(a). A district court shall

“award the writ or issue an order directing the respondent to show cause why the writ should not be

granted, unless it appears from the application that the applicant or person detained is not entitled

thereto.” 28 U.S.C. § 2243. “If it plainly appears from the petition and any attached exhibits that

the petitioner is not entitled to relief in the district court, the judge must dismiss the petition.” Rule

4, Rules Governing section 2254 Cases.

DISCUSSION

Petitioner is challenging the validity of his 2002 California state court conviction. 

Specifically, he claims that he was denied effective assistance of counsel because his attorney

advised him that pleading no contest to criminal charges would not result in deportation.

The federal writ of habeas corpus is only available to persons “in custody” at the time the

petition is filed. 28 U.S.C. § 2241(c), 2254(a). A petitioner who files a habeas petition after he has

fully served his sentence and who is not subject to court supervision is not “in custody” for the

purposes of this court’s subject matter jurisdiction and his petition is therefore properly denied. 

Delong v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990). Moreover, the immigration

consequences of a state conviction do not render an individual “in custody pursuant to the judgment

of a State court.” Resendiz v. Kovensky, 416 F.3d 952, 958 (9th Cir. 2005) (an INS detainee facing

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deportation on the basis of a state-court conviction is not in custody pursuant to the judgment of a

state court and therefore cannot file habeas petition under 28 U.S.C. section 2254); id. at 960 (an

immigration detainee is prevented from collaterally attacking a state court judgment in a 28 U.S.C.

section 2241 petition against the INS; the sole remedy is to attack the state court conviction in state

court). Here, petitioner has completed his sentence, including any parole or probation, imposed by

the Superior Court of San Mateo County and is therefore not in custody for purposes of section

2254. If petitioner seeks to challenge his current custody pursuant to the Arizona conviction for his

violation of Section 1326, his petition should be filed in the District of Arizona.

Moreover, petitioner failed to present his claims to the California Supreme Court. He claims

that exhaustion is not required because of People v. Kim, 45 Cal. 4th 1078 (2009). Although the

California Supreme Court held that “persons like defendant, who have completely served their

sentence and also completed their probation or parole period, may not challenge their underlying

conviction in a petition for a writ of habeas corpus because they are in neither actual nor

constructive custody for state habeas corpus purposes,” it did not alter exhaustion requirements

under Section 2254. Id. at 1108. Consequently, the petition must also be summarily dismissed for

failing to exhaust state court remedies.

The court notes the recent decision of the United States Supreme Court in Padilla v.

Kentucky, ___ U.S. ___, 130 S. Ct. 1473 (2010), which addresses counsel’s failure to advise

criminal defendants of immigration consequences of plea agreements. However, it appears that this

decision will be of little assistance to petitioner. The defendant there was challenging his

conviction in a post-conviction motion before the state court in which he was convicted. At that

time he was in custody on that conviction. See Commonwealth v. Padilla, 253 S.W. 3d 482, 283

(Ky. 2008). Petitioner here failed to pursue his habeas remedy in the state supreme court, and in

light of Kim and the long line of cases preceding it, he cannot do so now.

In fact, California has a statute, California Penal Code section 1016.5, which has been in

effect since January 1, 1978, requiring the court to advise a defendant pleading guilty or nolo

contendre that there may be immigration consequences such as deportation, exclusion or removal as

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a result of conviction. This section may provide relief from a conviction if the court failed to

comply with the statute. However, petitioner does not allege that the court failed to advise him in

accordance with the statute, and the statute does not provide a remedy for ineffective assistance of

counsel even if counsel misadvised his client. See Kim, 45 Cal. 4th at 1107 n.20. Nor does it appear

that petitioner is any better situated than the petitioner in Kim to seek extraordinary relief upon a

petition for a writ of error coram nobis, which in any event would need to be brought before the state

court in which he suffered his conviction. Id. at 1091–1107.

It is clear from the foregoing that there is no relief available to petitioner in this court.

CONCLUSION

For the foregoing reasons, the petition is summarily DISMISSED.

IT IS SO ORDERED.

Dated: June 3, 2010 

MARILYN HALL PATEL

United States District Court Judge

Northern District of California

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