Opinion
Criminal Action No. 97-87
August 13, 2001
A Petition to Expunge and Seal Records (Doc. 248) was filed by Rodrigo Teshima Jimenez. Having reviewed the pleadings, memoranda and the relevant law, the Court finds that it cannot grant the relief sought.
Petitioner has requested a complete expungement of his conviction so that a detainer issued by the Immigration and Naturalization Service can be eliminated and thus prevent his being deported. Petitioner avers that he is a 26-year old native of Colombia, who was as a "Legal Permanent Resident"("LPR"). He was arrested on March 19, 1997 for violation of 18 U.S.C. § 1956(a)(1) § (h). After pleading guilty, plaintiff was sentenced to a term of 54 months for this violation. As a result, he became immediately deportable pursuant to 8 U.S.C. § 1101(A)(43)(D). He also raises a successive ineffective assistance of counsel claim.
A court may not order expungement of arrest records where a conviction was validly obtained. United States v. Scott, 793 F.2d 117, 118(5th Cir. 1986). Here, the Court has ruled on the validity of the conviction and sentence as called into question by the petitioner's previous § 2255 filing. Indeed, expungement should rarely, if ever be employed by courts against executive branch agencies. See Sealed Appellant v. Sealed Appellee, 130 F.3d 695, 698. This remedy is "exceedingly narrow" and is granted only in exceptional circumstances. United States v. Rogers, 469 F.2d 1084 (5th Cir. 1972). As stated in Sealed Apuellant:
To have standing, a party claiming expungement of executive branch records must make a showing of more than mere burden. Unlike a persona asking for expungement of judicial records — over which the court has supervisory powers — the claimant must show an affirmative rights violation by executive branch officers or agencies to justify the intrusion into the executive's affairs. this injury must be such that no other remedy would afford relief.Id. at 697. The petitioner has not met this burden and is not entitled to the relief sought.
Furthermore, as to the ineffective assistance of counsel claim, it is successive. Thus, movant must demonstrate that his motion contains: (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court that was previously unavailable. 28 U.S.C. § 2244(b)(3)(C), 2255. As this burden has not been met by petitioner, this claim fails as well. Accordingly,
IT IS ORDERED that the Petition to Expunge Record of Conviction is DENIED