Opinion
CIVIL ACTION NO. 03-4402
January 28, 2004
MEMORANDUM ORDER
Richard Edwards brings this action for writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging the immigration judge's ("U") July 10, 2002 decision that Edwards "is precluded from eligibility for Section 212(c) waiver." IJ Dec. 1. More specifically, Edwards challenges the IJ's finding that at least one of Edwards' 1997 convictions is for an aggravated felony, which makes Edwards both subject to removal and ineligible for Section 212(c) waiver of such removal (or its current counterpart, cancellation of removal pursuant to 8 U.S.C. § 1229b(a)(3)). For the reasons set forth below, defendant's petition for writ of habeas corpus will be denied.
BACKGROUND
Richard Edwards ("Edwards"), the petitioner in this case, is an alien and a citizen of Jamaica. Pet. for Writ 1. He entered the United States in 1990 and was admitted as a lawful permanent resident. Id.
Since arriving in the United States, Edwards has spent a significant amount of time in prison. During his first year in the country, Edwards was arrested for various drug trafficking offenses. On September 25, 1991, as a result of those arrests, Edwards pled guilty in a New York state court to three counts of the criminal sale of a controlled substance in the third degree, in violation of N.Y. PENAL LAW § 220.39. Id. For this crime, he was sentenced to one and one half to four and one half years of incarceration. Id. In October 1992, Edwards was released from prison to complete the remainder of his sentence on parole.
On November 12, 1997, a jury convicted Edwards of criminal sale of a controlled substance in the third degree, pursuant to N.Y. PENAL LAW § 220.39. Id. at 2. He was also convicted of criminal possession of a controlled substance in the seventh degree, pursuant to N.Y. PENAL LAW § 220.03. He was sentenced to a term of five to ten years in prison. On May 28, 1998, while Edwards was serving his sentence for these convictions, the INS initiated removal proceedings against him by issuing a Notice to Appear. Id. The Notice to Appear charged Edwards with being a removable alien by virtue of his having committed the 1991 drug crime. The order of removal was based on both 8 U.S.C. § 1227(a)(2)(A)(iii), which provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable," and 8 U.S.C. § 1227(a)(2)(B)(i), which provides that "[a]ny alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable." Pet. for Writ 2. Four months later, on September 17, 1998, the INS, after conducting a removal hearing before an immigration judge, issued a final order of removal. Id. On April 4, 1999, the Board of Immigration Appeals ("BIA") sustained that order on appeal. Id.
This date is significant because it determines the rules to be applied to Edwards. In an attempt to ease application of the numerous amendments to the immigration laws in the 1990s, Congress and the courts have agreed that "[j]udicial review of cases in which the INS commenced deportation proceedings against the alien prior to April 1, 1997 is governed by the transitional rules of IIRIRA, whereas judicial review of those commenced thereafter are governed by the permanent judicial review amendments of IIRIRA (`permanent rules')." Liang v. INS, 206 F.3d 308, 310 (3d Cir. 2000) (interpreting Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-546 (1996)). Because the INS commenced removal proceedings against Edward on May 28, 1998, well after the April 1, 1997 cut-off, the instant case will be governed by the "permanent rules."
In an effort to avoid the 1999 removal order, Edwards filed a petition for writ of habeas corpus in the Western District of New York on December 22, 1999. Id. The district court judge reviewing Edwards' petition granted a stay of removal. Id. On January 28, 2001, while his petition was pending, Edwards was released from state prison into INS custody. Id. Eventually, the district court judge remanded Edwards' case to the Board of Immigration Appeals for review. Pet. Rep. to Gov't Opp. to Pet. for Writ Ex. 2. That body then ordered one of its immigration judges to reopen Edwards' case and to re-examine the order of removal. Id.
This was the first of four petitions for writs of habeas filed by Edwards. This petition was filed with Judge Arcara, and denominated as No. 99-1034.
Upon BIA's direction, Immigration Judge Walter Durling reopened the case. The hearing held by Immigration Judge Durling on July 10, 2002 focused on Edwards' claim for protection under Article 3 of the Convention Against Torture ("CAT"). Mem. in Supp. of Mot. to Supplement Pleadings Ex. E. After considering the evidence presented, Judge Durling issued an oral opinion in which he denied Edwards' claim for protection under CAT, ruled that Edwards was ineligible for section 212(c) waiver because of his 1997 convictions, and ultimately ordered Edwards removed from the United States to Jamaica. Id. Edwards appealed Judge Durling's decision but the BIA affirmed the decision on January 17, 2003 without issuing an opinion. Pet. for Writ. 3. The judge's denial of Edwards' claim for protection under CAT was the subject of Edwards' petition for writ of habeas filed with this court on January 22, 2003. His petition challenged the legality of his 1991 conviction and also the legality of the BIA's denial of CAT protection. On March 31, 2003, this court denied petitioner's petition.
That same day, petitioner filed another petition for writ of habeas corpus with this court, this time rasing the same claims that he raises in the petition before this court today. On April 3, 2003, Edwards withdrew that petition via a letter to the Clerk of the Court. Gov. Resp. in Opp. to Pet. for Writ Ex. 1. Petitioner then filed the instant petition in the Eastern District of New York on April 7, 2003, which was transferred to this court on July 29, 2003. Edwards challenges the IJ's conclusion that his 1997 conviction constitutes an "aggravated felony," and thereby makes him ineligible for cancellation of removal under § 212(c).
The Government raises the argument that the filing of the instant petition, which raises the same claims as Edwards' previously withdrawn petition, constitutes an abuse of the writ and should be denied on that ground. Although this argument has considerable force, I will decide this case on the merits.
STANDARD OF REVIEW
Despite passage of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), federal district courts retain subject matter jurisdiction pursuant to 28 U.S.C. § 2241 over petitions for writs of habeas corpus filed by aliens who were convicted of aggravated felonies, and thus were deemed subject to deportation. See INS v. St. Cyr, 533 U.S. 289, 314 (2001) ("[W]e conclude that habeas jurisdiction under § 2241 was not repealed by AEDPA and IIRIRA."); Chmakov v. Blackman, 266 F.3d 210, 213 (3d Cir. 2001) ("Both the Supreme Court and this Court have determined that notwithstanding the provisions of AEDPA or IIRIRA, district courts retain jurisdiction to hear habeas petitions filed by aliens subject to deportation for having committed certain criminal offenses."). This habeas review, however, is limited to questions of statutory or constitutional law; review of purely factual or discretionary issues is prohibited. Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001); Bowrin v. INS, 194 F.3d 483, 490 (4th Cir. 1999); Gutierrez-Chavez v. INS, 298 F.3d 824, 830 (9th Cir. 2002). As the Third Circuit more precisely phrased it, "[T]his Court has limited jurisdiction to consider an appeal from a final order of removal against an alien convicted of an aggravated felony. In particular, once we determine that the state criminal statute fits the legal definition of aggravated felony, our review of an alien's deportability comes to an end." Wilson v. Ashcroft, No. 03-1414, slip op. at 5 (3d Cir. Nov. 26, 2003) (citing 8 U.S.C. § 1252(a)(2)(C) and Drakes v. Zimski, 240 F.3d 246, 247-48 (3d Cir. 2001)).DISCUSSION
Edwards has previously challenged both his 1991 and 1997 convictions and has been denied on all attempts. Edwards currently challenges the IPs conclusion that his 1997 conviction constitutes an "aggravated felony" and therefore makes him ineligible for § 212(c) waiver. He relies on the fact that he would arguably be eligible for § 212(c) waiver if his removal was based solely on his 1991 conviction. The IIRIRA repealed § 212(c) in 1996 and replaced it with a new section that grants the Attorney General authority to cancel removal for a significantly narrower class of inadmissable or deportable aliens than § 212(c). 8 U.S.C. § 1229b(a). Persons convicted of aggravated felonies are explicitly excluded from that class. 8 U.S.C. § 1229b(a)(3). Although the Supreme Court's holding in INS v. St. Cyr arguably precludes the change made by the IIRIRA from retroactively affecting Edwards' 1991 conviction (which was obtained via a guilty plea), this change clearly applies to Edwards' 1997 conviction. Although the original charge of deportability filed against Edwards was based solely on his 1991 conviction, the INS filed an additional charge of deportability against Edwards in April 2002 based on his 1997 conviction pursuant to § 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."). Hence, if Edwards' 1997 conviction qualifies as an "aggravated felony," he is deportable and ineligible for cancellation of removal.
I do not address this issue in detail, since even if he would be eligible for § 212(c) waiver based solely on his 1991 conviction, his 1997 convictions nullify that eligibility. Hence, I focus on the 1997 convictions.
A number of criminal acts could constitute an "aggravated felony," as it is defined in § 101(a)(43) of the INA, 8 U.S.C. § 1101(a)(43). The charge references subsection (B) of that definition, which specifies: "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). In assessing when a state court drug conviction may constitute an "aggravated felony" under this section, the Third Circuit has held: "a state court drug conviction, for deportation purposes, constitutes an `aggravated felony' if it is either [1] a felony under state law and contains a drug trafficking component, or [2] would be punishable as a felony under the federal Controlled Substances Act." Gerbier v. Holmes, 280 F.3d 297, 299-300, 312 (3d Cir. 2002). The two alternatives are characterized as the "illicit trafficking" and "hypothetical federal felony" routes, respectively. To constitute an aggravated felony under the "illicit trafficking" route, the offense must (1) be a felony under the law of the convicting sovereign and (2) contain a trafficking component. Id. 280 F.3d at 313 (citing Matter of Davis, 20 I N Dec. 536 (BIA 1992)). Because it is not necessary to divine whether Edwards' 1997 conviction would constitute a "hypothetical federal felony," I will not discuss that route. For a thorough discussion of the "hypothetical federal felony" doctrine, see Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002) and Wilson v. Ashcroft, No. 03-1414, slip op. at 6-7 (3d Cir. Nov. 26, 2003).
Edwards' 1997 conviction for criminal sale of a controlled substance in the third degree, in violation of N.Y. PENAL LAW § 220.39 (he was also convicted of criminal possession of a controlled substance in the seventh degree, pursuant to N.Y. PENAL LAW § 220.03) clearly meets the first prong of the "illicit trafficking" route, as this offense is defined as a felony under New York law. The statute reads: "Criminal sale of a controlled substance in the third degree is a class B felony." N.Y. PENAL LAW § 220.39. Edwards contends that his offense does not contain a trafficking element. The basis of his argument is that he was convicted for sale of cocaine as an accessory, rather than as a principal. He is incorrect. As the New York Supreme Court noted, Edwards was convicted "after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree." PL Mot. to Supplement Pleading Ex. A. Moreover, even if he had been convicted only as an accessory, Edwards misunderstands the effect of accessory liability, as well as the meaning of "trafficking."
In the overwhelming majority of jurisdictions, including New York, "[t]here is no distinction between liability as a principal and criminal culpability as an accessory." People v. Duncan, 385 N.E.2d 572, 576 (N.Y. 1978), cert. denied 442 U.S. 910 (1979). The definition of accessory liability in New York states, "When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct." N.Y. PENAL LAW § 20.00. Hence, even if Edwards was convicted for sale of a controlled substance as an accessory, this fact does not change his ultimate liability for the completed offense of selling a controlled substance. Being an accessory to a sale of a controlled substance is not a separate offense from the sale itself and therefore an accessory and the principal have the same degree of culpability. In other words, Edwards' conviction as an accessory would be equivalent to that of an individual who was convicted of sale of a controlled substance as a principal.
Next, "trafficking" does not necessitate interstate or international commerce, but rather is defined in this context simply as "`the unlawful trading or dealing of a controlled substance.'" Gerbier, 280 F.3d at 305 (quoting Matter of Davis, 20 I. N. Dec. 536, 541 (BIA 1992)). The "sale" of a controlled substance unambiguously satisfies this element, especially when the particular crime requires an intent to sell on the part of the defendant. See N.Y. PENAL LAW § 220.39 ("knowingly and unlawfully sells . . ."). Defendant relies on the Third Circuit's decision in Gerbier as support for his argument that the specifics of his case indicate he was not involved in "trafficking." The facts of Gerbier, however, are easily distinguishable. In that case, the defendant pled guilty to possession of cocaine, which resulted in his conviction for violation of a statute entitled "Trafficking in [controlled substances, including cocaine]." Gerbier, 280 F.3d at 313. The court recognized that although the Delaware statute was "labeled `trafficking in cocaine' and punished, inter alia, the sale, manufacture and delivery of cocaine, it also penalized the simple possession of cocaine." Id. The court also noted that the Delaware Supreme Court made it clear that "the statute under which Gerbier was convicted does not contain an element or presumption of trafficking-it is merely the title of the act." Id. at 299. In other words, the defendant in Gerbier pleaded guilty and was convicted of the lesser-included offense of possession, leading the court to find that there was no trafficking element to his conviction. Id. at 314-15. In contrast, Edwards was convicted of "sale of a controlled substance," which does not punish mere possession. "Sale" clearly meets the definition of "trafficking," as it constitutes "trading or dealing." Gerbier, 280 F.3d at 305. Hence, Edwards' conviction constitutes a "trafficking" offense.
"The factual basis for the plea was that `on or about the 20th day of June, 1997, in the County of New Castle, in the State of Delaware, Gerbier did knowingly possess over 5 grams but less than 50 grams of cocaine.'" Gerbier, 280 F.3d at 301.
In summary, the offense of which Edwards was convicted in 1997, sale of a controlled substance in the third degree (N.Y. PENAL LAW § 220.39) constitutes a "drug trafficking" offense within the meaning of § 101(a)(43) of the INA, 8 U.S.C. § 1101(a)(43), and therefore an "aggravated felony" for the purposes of 8 U.S.C. § 1227(a)(2)(A)(iii) (providing for deportability of an alien) and 8 U.S.C. § 1229b(a) (prescribing eligibility criteria for cancellation of removal). Since Edwards is both deportable and ineligible for cancellation of removal based on his 1997 conviction for sale of a controlled substance, Edwards' petition for a writ of habeas will be denied.
CONCLUSION
Whether or not Edwards might be eligible for § 212(c) waiver for his 1991 conviction, it is clear that Edwards is not entitled to such waiver, or its current counterpart, cancellation of removal under 8 U.S.C. § 1229b(a), for his 1997 conviction. Since Edwards is deportable for the 1997 conviction, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), and his deportation order was, in fact, based at least in part on this conviction, potential eligibility for § 212(c) waiver for the 1991 conviction is irrelevant. Edwards is deportable and ineligible for cancellation or waiver of removal. Therefore, this petition for writ of habeas corpus will be denied.