Opinion
9:01-CV-0260 (DNH)(GLS)
March 25, 2003
JOSE PIETRE, Petitioner, Pro se 99-R-7477, Riverview Correctional Facility, Ogdensburg, NY, for Petitioner.
INS DISTRICT COUNSEL, United States Immigration and Naturalization Service, Buffalo, NY, JAMES W. GRABLE, ESQ., Special Asst. U.S. Attorney, for Respondent Immigration and Naturalization Service.
HON. ELIOT SPITZER DOUGLAS GOGLIA, ESQ., Office of Attorney General Ass't Attorney General State of New York, The Capitol Albany, NY, for Respondent Bintz.
REPORT-RECOMMENDATION
I. Introduction
Petitioner, pro se Jose Pietre commenced this action pursuant to 28 U.S.C. § 2241 on February 21, 2001. In his petition, Pietre challenges the decision of Immigration Judge Adam Opaciuch that ordered his deportation to the Domincan Republic (see Dkt. No. 1). In his petition, Pietre articulates three separate grounds in support of his claim that the order of removability should be vacated. Specifically, Pietre contends that: a) the Immigration Judge was biased against him; b) he was wrongfully denied his right to obtain counsel to defend himself against the charges brought against him by the Immigration and Naturalization Service ("INS"), and the Immigration Judge wrongfully allowed Pietre to represent himself at the deportation hearing, despite the fact that Pietre could not understand what was transpiring during that proceeding; and, c) the county court judge who accepted Pietre's guilty plea in conjunction with the criminal conviction upon which the Immigration Judge relied in ordering Pietre's removal from the United States, as well as the attorney who represented Pietre in that matter, improperly failed to advise him of the collateral consequences that might ensue if he plead guilty to the charge of third degree criminal possession of a controlled substance. See Pet. at Grounds One — Three.
Respondent Bintz seeks summary judgment relating to the third ground for relief, arguing alternatively that: (i) Pietre failed to first exhaust that claim in the state courts; and, (ii) a challenge to the underlying criminal conviction that resulted in the deportation order is barred by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (Dkt. Nos. 8-11). Respondent INS seeks dismissal of the entire petition arguing in its motion to dismiss that Pietre was afforded a fair hearing before Judge Opaciuch (Dkt. No. 14). Pietre has not opposed either motion. Therefore, this court will consider the documents submitted by the parties that address the allegations raised in Pietre's pleading, including the administrative record developed below, in arriving at its recommendation regarding Pietre's petition.
Bintz noted that the first two grounds for relief in Pietre's petition relate to the order of deportation, and accordingly, deferred to counsel for the INS to address the merits of those grounds (Dkt. No. 11, P. 1, n. 1).
Although the INS brought its motion as one seeking to dismiss Pietre's petition (see Dkt. No. 14), such papers are, in fact, a response in opposition to the petition, together with copies of the relevant administrative record (see Dkt. No. 14 and attachments).
For the following reasons, this court recommends dismissal of the petition.
II. Background
Pietre is a native and citizen of the Dominican Republic and was admitted to the United States as a lawful permanent resident alien in November of 1992. See Certified Administrative Record Compiled in Pitre-Contreras v. Immigration and Naturalization Service, No. A43-846-067 (attached to Dkt. No. 14, Record, P. 65).
On September 19, 1997, Pietre was convicted of third degree attempted criminal sale of a controlled substance (Record, P. 65), and on November 19, 1997, he was sentenced to time served and five years probation (Record, P. 55).
On September 22, 1999, Pietre plead guilty to second degree criminal possession of a controlled substance. (See Statement of Material Facts Not in Dispute, 7/12/01, Dkt. No. 9, ¶ 2. Pietre was sentenced to a term of six years to life imprisonment. Id.
Pietre apparently did not appeal either of those convictions (Dkt. No. 11, P. 4).
On January 12, 2000, Pietre was advised that the INS would be seeking his removal from the United States at a hearing before an Immigration Judge due to his September 1997 controlled substance conviction (Record, PP. 62-65). On March 3, 2000, Immigration Judge Opaciuch presided over a removal hearing at the Ulster Correctional Facility. However, Judge Opaciuch adjourned that proceeding to afford Pietre additional time within which to retain an attorney concerning the charges brought against him by the INS. (Record, PP. 36-38). That hearing resumed on April 21, 2000, and Pietre waived his right to an attorney (Record, PP. 44-45). Judge Opaciuch took testimony from Pietre and after considering the impact of the September 1997 controlled substance conviction on Pietre's ability to remain in the United States, ordered him deported to the Dominican Republic (Record, PP. 48-52). Pietre appealed the removal decision to the Board of Immigration Appeals ("BIA"). However, the BIA found that the September 1997 conviction supported Judge Opaciuch's removal decision and denied his appeal (Record, PP. 2-5).
III. Discussion A. Ground One
The first ground in Pietre's petition argues that the Immigration Judge was biased against him and that, as a result, he was deprived of his due process rights at that hearing. Pet. at Ground One.
Habeas relief is available to a petitioner claiming bias on the part of a judge where the petitioner establishes that the judge "had a 'direct, personal, substantial, pecuniary interest in reaching [the particular] conclusion against him in his case.'" Martuzas v. Reynolds, 983 F. Supp. 87, 91 (N.D.N.Y. 1997) (Pooler, D.J.) (adopting Report-Recommendation of Magistrate Judge David R. Homer) (citing Tumey v. Ohio, 273 U.S. 510, 523 (1927)). Such relief is also available where the petitioner demonstrates that the judge exhibited "a deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555 (1994); In re Int'l Bus. Mach. Corp., 45 F.3d 641, 644 (2d Cir. 1995). In assessing the merits of such a claim, the habeas court is to examine the entire record to determine whether the judge's claimed partiality affected his or her rulings. See U.S. v. Tocco, 135 F.3d 116, 129 (2d Cir. 1998) (citing United States v. Filani, 74 F.3d 378, 385-86 (2d Cir. 1996)).
Pietre has wholly failed to establish any bias on the part of Judge Opaciuch. At the removal hearing, Judge Opaciuch questioned Pietre about those charges, explored the issue of whether he was entitled to relief from removal and, after finding that Pietre's removal from the country was legally required, ordered Pietre's removal from the United States and advised him of his appeal rights. (See Record at 34-52). Pietre has not cited, and this court could not locate, any portion of the administrative record which supports Pietre's claim of hostility or bias on the part of Judge Opaciuch. Therefore, this court recommends that this ground be denied. Cf. Gutierrez-Chavez v. Immigration and Naturalization Service, 298 F.3d 824 (9th Cir. 2002) (denying habeas claim under § 2241 where petitioner failed to establish bias on part of Immigration Judge).
This court further notes that there has been no allegation, much less proof, that the Immigration Judge's legal determination that Pietre's deportation was required under the Immigration laws was erroneous in any way.
B. Ground Two
The second ground contains three different theories in support of Pietre's request for federal habeas intervention. Pietre first argues that he was wrongfully denied his ability to obtain an attorney to contest the charges brought by the INS. Pet. at Ground Two. Pietre also argues that Judge Opaciuch should not have permitted him to represent himself pro se at that proceeding. Id. Finally, Pietre appears to argue that he was unable to understand what occurred at the April 21, 2000, hearing because there was no translator present at that proceeding. Id.With respect to Pietre's claims regarding his right to obtain counsel, the court initially notes that because a removal proceeding is a civil, not a criminal matter, there is no Sixth Amendment right to counsel. Gutierrez v. Reno, 99CIV.11036, 2000 WL 1643585, at *3 (S.D.N.Y. Nov. 1, 2000) (citing Saleh v. United States Dep't of Justice, 962 F.2d 234, 241 (2d Cir. 1992)) (other citation omitted). However, aliens in removal proceedings do have a statutory right to the assistance of counsel at their own expense. See 8 U.S.C. § 1362 ("In any removal proceedings before an immigration judge . . . the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel . . . as he shall choose"); Gutierrez, 2000 WL 1643585, at *3.
Pietre's claim that Judge Opaciuch denied him his right to obtain counsel appears to overlook the fact that on March 3, 2000, Judge Opaciuch specifically adjourned the removal proceeding in order to afford Pietre time within which to retain counsel (Record, PP. 36-38). When that hearing resumed approximately six weeks later, April 21, 2000, Judge Opaciuch asked Pietre if he wished to have additional time to obtain counsel. However, Pietre indicated that he was prepared to represent himself at that hearing (Record, PP. 43-44). Thus, Pietre's claim that he was not afforded an opportunity to obtain an attorney for that hearing is without merit.
The following exchange occurred regarding the issue of whether Pietre desired additional time in which to secure an attorney for the removal proceeding:
The Court: Now, do you want another opportunity to try and get an attorney or do you want to proceed today by yourself?
Pietre: I have come myself, I don't have such a big problem, I don't think I can be deported for such a little problem.
The Court: Okay, raise your right hand sir. You waive your right to an attorney. You swear to tell the truth, the whole truth and nothing but the truth?
Pietre: The truth I'll say.
Record at 43-44.
Turning to Pietre's argument that he was unable to understand what transpired at that hearing because there was no interpreter present, see Pet. at Ground Two, the court notes that the transcript of the April 21, 2000, removal proceeding indicates that Delma Desir was present as the official interpreter for that proceeding (Record at 39-42). Thus, Pietre's contention that no interpreter was present at that hearing is belied by the record. Construing this aspect of Pietre's petition broadly as one alleging that the interpreter wrongfully failed to translate that proceeding in its entirety, the court notes that it reviewed the entire transcript of the April 21, 2000, removal proceeding in evaluating Pietre's claim of bias on the part of Judge Opaciuch. That review revealed that Pietre was fully capable of representing himself at that proceeding, and that he had made knowing and intelligent responses to questions posed to him by Judge Opaciuch. As such, Pietre's claims that: (i) the Immigration Judge wrongfully allowed him to proceed at the April 21, 2000, hearing pro se; and, (ii) he was unable to understand what transpired at that proceeding because an interpreter was not present at that hearing, are without merit. Therefore, this court recommends that the second ground in the petition be denied in its entirety.
C. Ground Three
The final ground relates to the September 19, 1997, criminal conviction upon which Judge Opaciuch relied in determining that Pietre's removal from the United States was required. See Pet. at Ground Three. Specifically, Pietre argues that both the judicial officer who accepted his guilty plea, as well as the attorney who represented him, wrongfully failed to advise Pietre that his guilty plea could result in Pietre's deportation from the United States. Pet. at Ground Three.
Unfortunately for Pietre, a habeas petition brought pursuant to 28 U.S.C. § 2241 cannot be used to challenge the underlying state conviction upon which an Immigration Judge's decision to order the removal of a petitioner is based. Johnson v. Immigration and Naturalization Service, 3:03CV96, 2003 WL 151381, at *2 (D.Conn. Jan. 21, 2003) (collecting cases); De Kopilchak v. Immigration and Naturalization Service, 98CIV.7931, 2000 WL 278074, at *1-2 (S.D.N.Y. Mar. 14, 2000) (§ 2241 habeas court is "without jurisdiction" to consider challenge to criminal conviction which resulted in order of deportation).
Additionally, if it were within this court's jurisdiction to review the substance of this ground, the court would find it to be without merit. A state trial court's failure to advise a criminal defendant of the possibility of deportation does not affect the validity of the guilty plea. People v. Torres, 227 A.D.2d 716, 717 (3d Dep't) (citing People v. Ford, 86 N.Y.2d 397, 401-403 (1995)), leave denied, 88 N.Y.2d 995 (1996). Moreover, the Second Circuit has specifically held that an attorney's "failure to inform a client of the deportation consequences of a guilty plea, without more, does not fall below an objective standard of reasonableness." U.S. v. Couto, 311 F.3d 179, 187 (2d Cir. 2002) (citation omitted). Pietre is therefore unable to establish that his trial counsel rendered ineffective assistance regarding this theory. E.g. Brown v. Artuz, 124 F.3d 73, 79-80 (2d Cir. 1997) (discussing proof required in claim alleging ineffective assistance) (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). Accordingly, this court recommends that the final ground in the petition be denied.
IV. Conclusion
After reviewing the submissions by the respondents in support of their respective motions, Pietre is not entitled to habeas relief upon any of the grounds raised in his petition. Therefore, this court recommends that the habeas petition be dismissed on this basis. Therefore, this court recommends that the motion for summary judgment filed by respondent Bintz, as well as the motion to dismiss filed by respondent INS, be granted.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that respondent Bintz's motion for summary judgment (Dkt. No. 8) be GRANTED; and it is further
RECOMMENDED, that respondent INS' motion to dismiss (Dkt. No. 14) be GRANTED; and it is further
RECOMMENDED, that Pietre's petition be DENIED and DISMISSED; and it is further
ORDERED, that the Clerk serve a copy of this Report and Recommendation on the parties by regular mail.
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have TEN (10) DAYS within which to file written objections to the foregoing report-recommendation. Any objections shall be filed with the clerk of the court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.