United States v. Juan Cabrera-Quintero

*943 PER CURIAM.

Juan Cabrera-Quintero appeals from the district court’s 1

denial of his petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255 . Appellant, an alien, pled guilty to a charge of entering the United States without authorization after he had been previously deported, in violation of 8 U.S.C. § 1326 . In his § 2255 motion to vacate his conviction under § 1326, appellant asserts: (1) that he was not deported according to law as required by § 1326, in that the Immigration and Naturalization Service did not follow its own rules in the deportation proceedings; and (2) that his guilty plea was the product of ineffective assistance of counsel, in that his counsel did not advise him that a collateral attack on his deportation was a defense. The district court rejected appellant’s claims, holding that the underlying deportation could not be collaterally attacked in a § 1326 prosecution.

Although recognizing that there was considerable support for appellant’s position, 2

the district court held that Congress did not intend to allow a collateral attack upon a deportation in a § 1326 prosecution.

3

The district court used as its touchstone the recent decision by the Supreme Court in Lewis v. United States, 445 U.S. 55 , 100 S.Ct. 915 , 63 L.Ed.2d 198 (1980), which held that the invalidity of the prior felony conviction is not a defense to a charge of violating 18 U.S.C.App. § 1202(a)(1).

4

Following the analytical approach used by the Supreme Court in Lewis , the district court found that: (1) on its face § 1326 does not limit its application to aliens who have been deported according to law; (2) there is no provision as in 18 U.S.C. § 3575 (e) and 21 U.S.C. § 851 (c)(2) authorizing collateral attack; (3) the statutory scheme as it appears in § 1105a expresses a congressional intent to limit review of deportation orders to direct or habeas review prior to indictment under § 1326; (4) there is a need to give finality to deportation orders; and (5) there is a lack of legislative history which would require a different interpretation.

We hold that the validity of the original deportation is not a matter that is cognizable under § 2255. Allegations of government misconduct in pretrial matters that do not amount to a denial of a fair trial generally cannot be raised under § 2255. “It is firmly established that § 2255 cannot be used as a substitute for direct appeal from a conviction.”

Houser v. United States, 508 F.2d 509, 513 (8th Cir. 1974). Whether the validity of the original deportation could have been raised on direct appeal is another question.

See notes 2 & 3, supra.

We also find that counsel for CabreraQuintero rendered satisfactory service.

Affirmed.

1

. The Honorable Donald E. O’Brien, United States District Judge, Northern District of Iowa.

2

.

United States v. Rangel-Gonzales, 617 F.2d 529 (9th Cir. 1980);

United States v. Calderon-Medina, 591 F.2d 529, 530 (9th Cir. 1979);

United States v. Gasca-Kraft, 522 F.2d 149, 152 (9th Cir. 1975);

United States v. Bowles, 331 F.2d 742, 750 (3d Cir. 1964).

3

. For cases denying collateral attacks of a deportation in a § 1326 prosecution, see United States v. Gonzalez-Parra, 438 F.2d 694 (5th Cir.), cert. denied, 402 U.S. 1010 , 91 S.Ct. 2196 , 29 L.Ed.2d 433 (1971);

Arriaga-Ramirez v. United States, 325 F.2d 857 (10th Cir. 1968);

United States v. Bruno, 328 F.Supp. 815 (W.D.Mo.1971).

See also United States v. Pereira, 574 F.2d 103, 110 (2d Cir.), cert. denied, 439 U.S. 847 , 99 S.Ct. 145 , 58 L.Ed.2d 148 (1978).

4

.

See also United States v. Pereira, supra, at 106; and United States v. Bruno, supra, at 824-25, which cite as analogous the rule that the invalidity of the underlying conviction is not a defense to a charge of escape, 18 U.S.C. § 751 .