United States District Court, D. New Jersey
Susan D. Wigenton, United States District Judge.
or about May 10, 2017, Petitioner, Augustino Smith, filed the
instant petition, which he titles a petition for a writ of
error coram nobis. (ECF No. 1). He thereafter paid the filing
fee. (ECF Docket Sheet).
his petition, Petitioner seeks to collaterally attack his
1997 state court conviction for robbery and possession with
the intent to distribute a controlled dangerous substance on
the basis that he was not given proper advice as to the
immigration consequences of his guilty plea by his counsel in
violation of Padilla v. Kentucky, 559 U.S. 356
(2010). Although Petitioner makes mention of his later
removal from the United States and conviction for illegal
re-entry in federal court, his current petition seeks only to
collaterally attack his state court
conviction. (ECF No. 1 at 1-8). Petitioner makes
clear in his petition, however, that he is no longer in
custody pursuant to his 1997 state court conviction.
(Id. at 3). He therefore seeks to attack that
conviction via a coram nobis petition rather than a
habeas petition. (Id.).
Pursuant to Federal Rule of Civil Procedure 12(h)(3), if
"the court determines at any time that it lacks
subject-matter jurisdiction" over an action, the court,
sua sponte, "must dismiss the action."
While a petitioner may use a coram nobis petition to
collaterally attack a federally issued sentence after he has
been released from custody, "coram nobis is not
available in federal court as a means of attack on a state
criminal judgment.... [and a state convict] can seek
coram nobis relief only in state court."
Obado v. New Jersey, 328 F.3d 716, 718 (3d Cir.
2003). As such, the only means through which a state convict
may collaterally attack his state court conviction in federal
court is through a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In his current petition,
Petitioner seeks only to collaterally challenge his state
court convictions entered in 1997. Because federal courts do
not possess jurisdiction over coram nobis claims
attacking state court convictions, Petitioner's current
petition must be dismissed to the extent it is brought as a
coram nobis petition. Id.; see also Goodman v.
Grondolsky, 427 F.App'x 81, 84 n. 3 (3d Cir. 2011).
the extent that Petitioner's current petition actually
represents a habeas petition, rather than a coram
nobis petition over which this Court lacks jurisdiction,
Rule 4 of the Rules Governing Section 2254 Cases requires the
Court to screen Petitioner's petition and determine
whether it "plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief." Pursuant to this rule, a district court is
"authorized to dismiss summarily any habeas petition
that appears legally insufficient on its face."
McFarland v. Scott, 512 U.S. 849, 856 (1994).
Pursuant to 28 U.S.C. § 2254, habeas jurisdiction exists
to collaterally challenge state court judgments only for
those individuals who are "in custody" pursuant to
the state court judgment at the time their habeas petitions
are filed. Obado, 328 F.3d at 717. Where a
petitioner is not "in custody" pursuant to the
state court judgment at the time his petition is filed, this
Court lacks jurisdiction over his habeas petition and must
dismiss it as such. Id. at 717-18. As Petitioner
directly asserts that he is not in custody pursuant to his
state court conviction in his current petition (see
ECF No. 1 at 3), this Court has no jurisdiction over his
petition to the extent it represents a habeas petition
brought pursuant to § 2254. Obado, 348 F.3d at
717-18. As such, this Court therefore lacks jurisdiction over
petitioner's current petition, whether construed as a
habeas petition or a coram nobis petition, and the
petition must therefore be dismissed at this time for lack of
jurisdiction. To the extent Petitioner wishes to pursue a
collateral challenge to his 1997 state court convictions, he
must do so in the state courts. Obado, 348 F.3d at
Pursuant to 28 U.S.C. §2253(c), a petitioner may not
appeal from a final order in a habeas proceeding where that
petitioner's detention arises out of his state court
conviction unless he has "made a substantial showing of
the denial of a constitutional right." "A
petitioner satisfies this standard by demonstrating that
jurists of reason could disagree with the district
court's resolution of his constitutional claims or that
jurists could conclude that the issues presented here are
adequate to deserve encouragement to proceed further."
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
"When the district court denies a habeas petition on
procedural grounds without reaching the prisoner's
underlying constitutional claim, a COA should issue when the
prisoner shows, at least, that jurists of reason would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling." Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Because jurists of
reason would not disagree with this Court's conclusion
that it lacks jurisdiction over Petitioner's petition,
whether presented as a habeas petition or coram
nobis petition, Petitioner has failed to make a
substantial showing of the denial of a constitutional right,
and this Court will therefore deny him a certificate of
appealability to the extent that his current petition
represents a petition for a writ of habeas corpus as opposed
to a jurisdictionally barred coram nobis petition.
conclusion, Petitioner's petition (ECF No. 1) shall be
DISMISSED for lack of jurisdiction, and Petitioner shall be
DENIED a certificate of appealability to the extent that his
petition is in fact a petition for a writ of habeas corpus.
An appropriate order follows.
 Petitioner's petition discusses
his conviction in state court in 1997, his state court
counsel's failure to advise him as to the immigration
consequences of his 1997 guilty plea, his deportation in 1999
and his conviction for illegal reentry following his return
to the United States which was entered on October 31, 2014.
(See Docket No. 09-498 at ECF No. 46). Petitioner
thereafter makes a Padilla argument at length
regarding the failure of his state court counsel to advise
him of the immigration consequences of his state court plea.
Petitioner presents no other claims. (ECF No. 1). Petitioner
also attaches to his petition a prior habeas petition, which
was dismissed without prejudice for lack of jurisdiction, in
which he also sought to attack his state court conviction on
similar grounds. (Document 1 attached to ECF No. 1). Given
the fact that Petitioner was clearly advised of the
immigration consequences of his guilty plea in his illegal
re-entry matter (see, e.g., Plea Transcript, Docket
No. 09-498 at ECF No. 49 at 8-9), and Petitioner's only
claim regards the failure of his prior state court counsel to