Opinion
James Todd Bennett, El Cerrito, California, Counsel for Petitioner(s).
Kevin V. Ryan, United States Attorney, San Francisco, California, Joann M. Swanson, United States Attorney, San Francisco, California, Edward A. Olsen, San Francisco, California, United States Attorney, Counsel for Respondent(s).
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
RONALD WHYTE, District Judge.
Petitioner Ferdinand Cablay's petition for writ of habeas corpus was heard on March 19, 2004. For the reasons set forth below, the court denies the petition.
I. BACKGROUND
Petitioner is a native and citizen of the Philippines who has been lawfully residing in the United States since 1975. He was convicted on October 1, 1992 in the Municipal Court for the County of Alameda of carrying a concealed weapon without having a license to carry such firearm, in violation of California Penal Code § 12025(b). (Olsen Decl. Exh. B.) He was convicted on September 2, 1997 in the Municipal Court for the County of Santa Clara of using or being under the influence of methamphetamine, in violation of California Health & Safety Code § 11550(a). (Id. at Exh. C.) He was convicted on November 17, 1999 in the Municipal Court for the County of Alameda of possession of methamphetamine for sale, in violation of California Health & Safety Code § 11378. (Id. at Exh. D.) He was convicted on March 8, 2000 in the Municipal Court for the County of Alameda of being under the influence of methamphetamine, in violation of California Health and Safety Code §§ 11550 and 11377(a). (Id. at Exh. E.)
The United States Immigration and Customs Enforcement ("ICE") placed petitioner in removal proceedings on March 20, 2001, charging petitioner in a Notice to Appear with removability from the United States as an alien who had been convicted of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien who had been convicted of a law relating to a controlled substance under 8 U.S.C. § 1227(a)(2)(B)(i), and as an alien who had been convicted of a crime relating to a firearm after admission under 8 U.S.C. § 1227(a)(2)(C). (Olsen Decl. Exh. F.)
An immigration judge determined that petitioner was ineligible for cancellation of removal because he had been convicted of an aggravated felony, see 8 U.S.C. § 1229b(a)(3) (stating that a lawful permanent resident is not eligible for cancellation of removal if he or she has been convicted of an aggravated felony) and ordered petitioner removed to the Philippines. (Olsen Decl. Exh. G.) The Board of Immigration Appeals ("BIA") affirmed the decision of the immigration judge in a decision dated December 12, 2002. (Id. at Exh. H.) Petitioner filed a petition for review of the BIA's decision in the Ninth Circuit Court of Appeals on January 10, 2003. (Id. at Exh. I and J.) The Ninth Circuit dismissed the appeal for failure to prosecute under Ninth Circuit Rule 42-1 on November 3, 2003. (Id. at Exh. J and K.)
Petitioner has filed the current petition for writ of habeas corpus under 28 U.S.C. § 2241, asking this court to find that his convictions do not constitute aggravated felonies under 8 U.S.C § 1227(a)(2)(A)(iii), as defined in 12 U.S.C. § 1101(a)(43). Such a finding, petitioner contends, would make him eligible for the reopening of removal proceedings to seek the discretionary cancellation of removal.
II. ANALYSIS
A. Failure to Exhaust
Respondents first argue that this court should dismiss the petition because petitioner has failed to exhaust his judicial remedies. Respondents' claim is based on petitioner's failure to prosecute his direct appeal of the BIA decision, resulting in the Ninth Circuit dismissal of the appeal. "District courts are authorized by 28 U.S.C. § 2241 to consider petitions for habeas corpus. That section does not specifically require petitioners to exhaust direct appeals before filing petitions for habeas corpus." Castro-Cortez v. INS , 239 F.3d 1037, 1047 (9th Cir. 2001). Nevertheless, ordinarily, as a prudential matter, habeas petitioners must exhaust available judicial and administrative remedies before seeking relief under § 2241. Id .; see Noriega-Lopez v. Ashcroft , 335 F.3d 874, 878 (9th Cir. 2003) (petitioner should have raised challenge to sufficiency of evidence on direct appeal).
This petition raises circumstances justifying consideration of the petition despite the failure to exhaust judicial remedies. Petitioner's sole ground for seeking a writ of habeas corpus is based on his interpretation of a purportedly new standard for the definition of aggravated felony announced in Cazarez-Gutierrez v. Ashcroft , 356 F.3d 1015 (9th Cir. 2004). That case was decided a year after his direct appeal was filed. As his present argument could not have been raised in the direct appeal, his failure to pursue that remedy does not invoke the prudential concerns typically warranting dismissal for failure to exhaust.
B. Definition of Aggravated Felony
Petitioner argues that the writ of habeas corpus should be granted because the Ninth Circuit's recent decision in Cazarez-Gutierrez , 356 F.3d at 1015, has rendered him eligible for cancellation of removal. An alien is ineligible for cancellation of removal if he is convicted, under state or federal law, of an aggravated felony. 8 U.S.C § 1227(a)(2)(A)(iii). The immigration judge and BIA found that petitioner had been convicted of an aggravated felony for immigration purposes.
Petitioner argues that Cazarez-Gutierrez has changed the definition of aggravated felony to now require the use or possession of a firearm as an element of the state drug offense or in the facts underlying the conviction. The relevant statutory definition of an aggravated felony is: "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B). Drug trafficking is defined in § 924(c) as, "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.)." 18 U.S.C. § 924(c)(1)(A)(2). Petitioner's argument rests upon the fact that § 924 is a penalty statute for crimes involving the use or possession of firearms. Essentially, according to petitioner, the immigration statute's definition of drug trafficking by reference to a gun statute necessarily imports the use of a firearm as a requirement into the definition.
A plain reading of § 1101(a)(43)(B) reveals petitioner is wrong. Further, § 924 itself does not support petitioner's position. In § 924(c)(1)(A), the term drug trafficking is set out, and then the statute enhances penalties for drug trafficking committed with the use or possession of a firearm. Such wording indicates Congress understood "drug trafficking" to be a crime that could be committed with or without a firearm. "Drug trafficking" in § 924(c)(2) is defined as an independent offense and the definition includes nothing expressly or implicitly about the use or possession of firearms.
Nothing in Cazarez-Gutierrez alters this definition. That case dealt with whether the definition of an aggravated felony under federal immigration law should be dependent on state law characterization of the offense. See Cazarez-Guiterrez, 356 F.3d at 945. There, the petitioner was convicted for possession of methamphetamine, which under Arizona state law was a felony but under the federal drug laws would only be a misdemeanor. Id. at 942. The court granted the petition, reversing the BIA's decision that the petitioner's state conviction constituted an aggravated felony for immigration purposes and thus rendered him eligible for cancellation of removal. Id. at 943.
The general rule from Cazarez-Guiterrez is that in the Ninth Circuit "a state drug offense is an aggravated felony for immigration purposes only if it would be punishable as a felony under federal drug laws or the crime contains a trafficking element." Id. at 949. Interestingly, in a thorough exploration of the statutory history of a recent amendment to § 924(c), the court observed "the amendment was intended to make clear that drug trafficking crime' includes possession with intent to distribute.'" Id. at 954 (quoting 134 Cong. Rec. S17360, S17363 (Section Analysis of Judiciary Comm. Issues in H.R. 5210 by Sen. Biden) and citing United States v. Contreras , 895 F.2d 1241, 1244 (9th Cir. 1990) (noting that Congress indicated that it had always considered possession with intent to distribute - a felony punishable under the Controlled Substances Act - a drug trafficking crime for purposes of §924(c)).
Petitioner was convicted in state court for the possession of methamphetamine for sale (in violation of California Health & Safety Code §11378). Given that the conviction was for possessing drugs intended for sale, the crime contains a trafficking element. Moreover, this offense would constitute a felony under the federal drug laws. Therefore, under the general rule announced by Cazarez-Gutierrez, petitioner has been convicted of an aggravated felony.
III. ORDER
For the foregoing reasons, the court denies the petition for writ of habeas corpus.