Opinion
No. 04 Civ. 8705 (NRB).
June 14, 2005
MEMORANDUM AND ORDER
On or about February 25, 1999, petitioner pleaded guilty to attempted possession of a controlled substance in New York state court. On April 13, 1999, petitioner was sentenced to time served and five years probation. On November 29, 2004, petitioner filed a habeas petition pursuant to 28 U.S.C. § 2254 challenging the validity of his earlier state conviction. Petitioner claims that he was denied effective assistance of counsel because: (1) petitioner's attorney incorrectly informed him that his plea of guilty would not effect his immigration status, and (2) his attorney failed to challenge the validity of the police search.
By order dated April 20, 2005, this Court informed the Attorney General of the State of New York that its response was due May 25, 2005. On June 3, 2005, this Court received a letter from the Bronx District Attorney's Office stating that it had not received notice of the habeas petition or the Court's deadline until June 2, 2005, and requesting an extension of the time to respond. On June 6, 2005, we received a motion from petitioner for a default judgment against the respondent for failure to respond and an emergency motion to stay his upcoming deportation. For the following reasons, petitioner's motions are denied.
It is established law in the Second Circuit that the government's failure to file a timely response does not entitle a habeas petitioner to a default. Bermudez v. Reid, 733 F.2d 18, 21 (2d Cir. 1991). A habeas petition is not an ordinary civil proceeding, and as such, strict application of the Rules of Civil Procedure is inappropriate. Id. As applied to habeas petitions, entry of default judgment is not warranted unless the petitioner establishes "a claim or right to relief by evidence satisfactory to the court." Id. at 22. No such right has been established here. Moreover, the entry of default judgment against the respondent would be inappropriate under any circumstances as the respondent contacted this Court on June 3, 2005 with proper justification for its delay. Accordingly, petitioner's motion for default judgement is denied.
With respect to petitioner's motion for an emergency stay of deportation, this Court is precluded from granting such a motion. Section 1252(e)(1) prohibits courts from granting equitable relief pertaining to an order to exclude an alien except as specifically authorized by statute. 8 U.S.C. § 1252(e)(1); see Reno v. Anmerican-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999). Under section 1252, a court may issue a stay of deportation when the habeas petition challenges the validity of the order of the removal. Petitioner's habeas petition, however, is a challenge to his underlying state conviction under section 2254, not a challenge to his order of removal under section 2241. Moreover, under the Real ID Act of 2005, had the petitioner challenged his final deportation order under section 2241, we would be required to transfer the case to the Court of Appeals for review. Pub.L. No. 109-13, § 106, 119 Stat. 231 (May 11, 2005). Accordingly, we lack authority to grant petitioner's motion for a stay of removal. See Kamara v. People of State of New York, No. 02 Civ. 9599, 2004 WL 2222155, at *1-*2 (S.D.N.Y. Sept. 30, 2004) (finding court lacked authority to grant motion for stay of deportation when petitioner's habeas petition challenged the underlying state conviction).
For the reasons stated above, petitioner's motions are denied.
SO ORDERED.