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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

RODOLFO GONZALEZ-CAMPOS, 

 

 Petitioner, CASE NO. 2:13-CV-1248 

 CRIM. NO. 2:12-CR-204 

 v. JUDGE PETER C. ECONOMUS 

 MAGISTRATE JUDGE KING 

UNITED STATES OF AMERICA, 

 Respondent. 

ORDER AND 

REPORT AND RECOMMENDATION 

 Petitioner, a federal prisoner, originally brought this motion to vacate, set aside or correct 

sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on the original Motion to 

Vacate, ECF 28, Respondent’s Response in Opposition, ECF 35, Petitioner’s Reply, ECF 36, 

Respondent’s Supplemental Response, ECF 38, and the exhibits of the parties. For the reasons 

that follow, the Magistrate Judge DENIES Petitioner’s request for an evidentiary hearing and 

RECOMMENDS that this action be DISMISSED. 

Factual and Procedural History 

 Petitioner was charged in this case with reentry into the United States on August 28, 2012 

after having been deported and removed from the United States on March 23, 2010 at Laredo, 

Texas, in violation of 8 U.S.C. § 1326(a). Information, ECF 12. Petitioner entered a plea of 

guilty pursuant to the Superseding Plea Agreement, ECF 16. On December 3, 2012, the Court 

imposed a sentence of time served. Judgment, ECF 25. Petitioner did not file an appeal from 

that judgment. On December 17, 2013, Petitioner filed this action, alleging that he was denied 

the effective assistance of counsel because his attorney advised him to plead guilty rather than 

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attack the March 16, 2010 removal order that resulted in his removal on March 23, 2010 (claim 

one); Petitioner also contends that he is actually innocent of the charge against him (claim two). 

 This action was filed with the assistance of an Assistant Federal Public Defender who had 

been appointed to represent Petitioner in another case against Petitioner in this Court, United 

States of America v. Rodolfo Gonzalez-Campos, 2:13-cr-255 (“Gonzalez-Campos II”). GonzalezCampos II charged Petitioner with illegal reentry after having been deported following his 

conviction of a felony offense in violation of 8 U.S.C. § 1326(a), (b)(1). It is the conviction in 

this case that formed the aggravating predicate in Gonzalez-Campos II. 

In Gonzalez-Campos II, Petitioner also sought to collaterally attack the validity of the 

March 16, 2010 removal order. On March 18, 2014, Judge Graham, the trial judge in GonzalezCampos II, denied Petitioner’s motion to dismiss that case on this basis, finding that “defendant 

has failed to sustain his burden under [8 U.S.C.] §1326(d) of establishing the elements necessary 

for a successful collateral attack on the removal order in his case.” Gonzalez-Campos II, 

Opinion and Order, ECF 22, PAGEID# 129. Petitioner’s conviction in Gonzalez-Campos II is 

the subject of a pending appeal. 

Discussion 

Respondent first argues that this Court cannot consider Petitioner’s claims under 28 

U.S.C. § 2255 because Petitioner’s sentence had completely expired by the time he filed the 

Motion to Vacate. See 28 U.S.C. § 2255(a)(providing that “[a] prisoner in custody . . . may 

move the court which imposed the sentence to vacate, set aside or correct the sentence.”). A 

federal habeas corpus petitioner must be “in custody” pursuant to the conviction or sentence 

under attack at the time he files his habeas corpus petition. See Maleng v. Cook, 490 U.S. 488, 

490–491 (1989)(citing Carafas v. La Valle, 391 U.S. 234, 238 (1968)). A petitioner whose 

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sentence has completely expired prior to the filing of his habeas corpus petition does not satisfy 

the “in custody” requirement for federal habeas corpus review. See Maleng v. Cook, 488 U.S. at 

492–493. This is true, moreover, even if “that conviction has been used to enhance the length of 

a current or future sentence imposed for a subsequent conviction.” Clemons v. Mendez, 121 

F.Supp.2d 1101, 1102–1103 (E.D. Mich. 2000)(citing Maleng v. Cook.) 

Petitioner acknowledges that his sentence had fully expired by the time he filed the 

Motion to Vacate in this action, but he claims an exemption from the “in custody” requirement 

because of the short duration of the sentence imposed; Petitioner specifically argues that, 

otherwise, a sentence of “time served” would necessarily foreclose all forms of federal habeas 

corpus review. Reply, PAGEID# 163. Alternatively, Petitioner suggests that the Court consider 

his Motion to Vacate as a petition for a writ of error coram nobis filed pursuant to the All Writs 

Act, 28 U.S.C. § 1651(a). 

In support of his claim to an exemption of the “in custody” requirement, Petitioner refers 

to Powers v. Hamilton County Public Defender Commission, 501 F.3d 592, 601 (6th Cir. 2007), 

in which the United States Court of Appeals for the Sixth Circuit held that a plaintiff “who 

lack[s] a habeas option for the vindication of [his] federal rights” may pursue a civil claim under 

42 U.S.C. § 1983 arising out of a wrongful conviction without first demonstrating the invalidity 

of that conviction, as is ordinarily required by Heck v. Humphrey, 512 U.S. 477 (1994). Powers

is simply inapplicable to this case; indeed, Powers reinforces the proposition that only those 

persons “in custody” may pursue habeas corpus relief. See also Maleng, 490 U.S. at 491 (“[t]he 

United States Supreme Court has “never held . . . that a habeas petitioner may be ‘in custody’ 

under a conviction when the sentence imposed for that conviction has fully expired at the time 

his petition is filed.”) . 

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Petitioner contends, alternatively, that the Court may construe his claims as a petition for 

a writ of error coram nobis under the All Writs Act, 28 U.S.C. § 1651, which provides in 

relevant part as follows: 

The Supreme Court and all courts established by Act of Congress 

may issue all writs necessary or appropriate in aid of their 

respective jurisdictions and agreeable to the usages and principles 

of law. 

28 U.S.C. § 1651(a). A petition under the All Writs Act is an “extraordinary remedy” and is 

permitted only where justice so compels. Chaidez v. United States, -- U.S. --, 133 S.Ct. 1103, 

1106 n.1 (2013); United States v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001)(“Coram nobis is an 

“extraordinary remedy” to be used “only under circumstances to review errors of the most 

fundamental character – e.g., errors rendering the proceedings themselves invalid.”). The writ is 

not available to persons in custody and therefore eligible to proceed under § 2255. Johnson, 237 

F.3d at 755. See also Owens v. Boyd, 235 F.3d 356, 360 (7th Cir. 2000)(“Persons still in custody 

must look to § 2254 or § 2255 for relief; they cannot use § 1651(a) to escape statutory 

restrictions on those remedies.”) (citing Pennsylvania Bureau of Correction v. United States 

Marshals Service, 474 U.S. 34, 43 (1985)). 

Assuming that Petitioner is eligible to pursue a petition for a writ of error coram nobis

because his sentence foreclosed a challenge to his conviction under § 2255, the Court 

nevertheless concludes that Petitioner may not prevail on his claims. In order to prevail in a 

petition for a writ of error coram nobis, a petitioner must demonstrate 

 (1) an error of fact; (2) unknown at the time of trial; and (3) of a 

fundamentally unjust character which probably would have altered 

the outcome of the challenged proceeding if it had been known. 

Johnson, 237 F.3d at 755 (citing Blanton v. United States, 94 F.3d 227, 230 (6th Cir. 1996)). “A 

petitioner is not entitled to coram nobis relief if he is merely raising legal challenges concerning 

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the validity of a conviction where he had knowledge of the underlying facts at the time of trial.” 

Warden v. United States, 2014 WL 4096915, at *2 (6th Cir. Aug. 13, 2013)(citing Blanton, 94 

F.3d at 230). 

Petitioner has failed to meet the requirements for consideration of a petition for a writ of 

error coram nobis under the All Writs Act. He does not allege an error of fact about which he 

was unaware at the time he entered his guilty plea. Furthermore, and for the reasons stated by 

Judge Graham in denying Petitioner’s motion to dismiss Gonzalez-Campos II, Petitioner’s 

challenge to the order of removal does not raise an issue of “fundamentally unjust character 

which probably would have altered the outcome of the challenged proceeding if it had been 

known.” Blanton, 94 F.3d at 231. 

In any event, Petitioner’s claims are without merit. His claim that his attorney was 

ineffective in failing to challenge the validity of the March 16, 2010 removal order must fail for 

the reasons stated in Judge Graham’s order denying Petitioner’s motion to dismiss GonzalezCampos II. See Strickland v. Washington, 466 U.S. 668, 687 (1984)(A petitioner challenging the 

effective assistance of his counsel must establish that (1) his counsel’s performance fell below an 

objective standard of reasonableness and (2) his defense was prejudiced by counsel’s errors). 

Petitioner’s claim that he was actually innocent of the charge against him likewise fails to offer 

relief. See Herrera v. Collins, 506 U.S. 390, 401 (1993) (“Few rulings would be more disruptive 

of our federal system than to provide for federal habeas review of freestanding claims of actual 

innocence”); see also House v. Bell, 547 U.S. 518, 554–55 (2006) (declining to resolve the 

issue). 

WHEREUPON the Magistrate Judge RECOMMENDS that this action be 

DISMISSED. Petitioner’s request for an evidentiary hearing is DENIED. 

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Procedure on Objections 

If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) days of the date of this report, file and serve on all parties written objections to those 

specific proposed findings or recommendations to which objection is made, together with 

supporting authority for the objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified proposed findings or recommendations 

to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or 

modify, in whole or in part, the findings or recommendations made herein, may receive further 

evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 

636(b)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981). 

The parties are further advised that, if they intend to file an appeal of any adverse 

decision, they may submit arguments in any objections filed, regarding whether a certificate of 

appealability should issue. 

 s/ Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge 

 September 22, 2014 

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