United States of America v. Christopher Ndiagu

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER NDIAGU,
Defendant - Appellant.
No. 11-57240
D.C. Nos. 2:11-cv-03080-PA
2:07-cr-01276-PA-2
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted February 2, 2015 **
Pasadena, California
Before: D.W. NELSON, BYBEE, and IKUTA, Circuit Judges.
Christopher Ndiagu (“Ndiagu”) appeals the district court’s dismissal of his
motion to vacate, set aside or correct sentence filed pursuant to 28 U.S.C. § 2255
FILED
FEB 04 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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(“§2255 Motion”) based on a claim of ineffective assistance of counsel. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
After being charged in a nine-count indictment in the district court, Ndiagu
pleaded guilty to two counts: mail theft and identity theft under 18 U.S.C. §§
1028A(a)(1), 1708. Prior to pleading guilty, Ndiagu alleges his attorney assured
him that his resulting convictions would not render him mandatorily deportable
and that an immigration judge could consider certain factors to grant him relief
from deportation.
Ndiagu was sentenced to 30 months in custody followed by two years of
supervised release. After completing his sentence, Ndiagu was immediately
transferred into the custody of the Department of Homeland Security (“DHS”) on
December 21, 2009. On that date, Ndiagu was served with both a Notice to
Appear (“NTA”) and a Notice of Custody Determination (“NCD”) from DHS.
Ndiagu alleges that at a hearing before an immigration judge on January 6, 2011,
he was informed for the first time that he was mandatorily deportable based on his
convictions.
On March 9, 2011, Ndiagu filed his § 2255 Motion pro se in the district
court. On November 30, 2011, the district court dismissed his § 2255 Motion as
untimely.
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Although not raised by either of the parties, we first consider our jurisdiction
over this case. A petition for writ of habeas corpus under 28 U.S.C. § 2255 may
only be filed by “[a] prisoner in custody.” The “in custody” requirement is
jurisdictional in nature and applies at the time the petition is filed. United States v.
Reves, 774 F.3d 562, 564–65 (9th Cir. 2014). Although Ndiagu was no longer in
federal prison when he filed his § 2255 Motion, he was still subject to a term of
supervised release, which satisfies the “in custody” requirement. Matus-Leva v.
United States, 287 F.3d 758, 761 (9th Cir. 2002). Additionally, because Ndiagu
remains subject to the collateral consequence of removal, his case is not mooted by
the fact that he is no longer “in custody.” Zegarra-Gomez v. I.N.S., 314 F.3d 1124,
1126 (9th Cir. 2003).
Under 28 U.S.C. § 2255(f)(4), the one-year statute of limitations for Ndiagu
to file his § 2255 Motion began to run from “the date on which the facts supporting
the claim or claims presented could have been discovered through the exercise of
due diligence.” “Due diligence does not require the maximum feasible diligence,
but it does require reasonable diligence in the circumstances.” Ford v. Gonzalez,
683 F.3d 1230, 1235 (9th Cir. 2012) (internal quotation marks and citation
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omitted).1 Had Ndiagu exercised due diligence, he would have discovered the
factual predicate for his claims when he was transferred into DHS custody and
received both the NTA and the NCD on December 21, 2009. Those documents
informed Ndiagu that he was being charged with a crime involving moral
turpitude, which would clearly render him ineligible for cancellation of removal or
adjustment of status and mandatorily detainable under the Immigration and
Nationality Act. 8 U.S.C. §§ 1229b(b)(1)(C), 1226(c). Although Ndiagu may not
have “underst[ood] the legal significance” of these facts, he was aware of “the facts
themselves” on December 21, 2009. See Hasan v. Galaza, 254 F.3d 1150, 1154
n.3 (9th Cir. 2001). His § 2255 Motion filed on March 9, 2011, is therefore
untimely under 28 U.S.C. § 2255(f)(4).
AFFIRMED.
1 Although Ford involved analysis of the nearly identical statute of
limitations under 28 U.S.C. § 2244, we have previously noted that “the Supreme
Court has interpreted the statute-of-limitations provisions of § 2244 and § 2255 in
concert with one another.” Shannon v. Newland, 410 F.3d 1083, 1088 (9th Cir.
2005).
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