Opinion
C.A. No. 03-135 L
October 7, 2003
Enrique Heber pro se, for Appellant Counselors
Dulce Donovan, Esq, for Appellee Counselors
Report and Recommendation
Enrique Heber Gomez ("Gomez" or "petitioner"), pro se, filed with the Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Gomez is currently in custody awaiting removal to his native country, the Dominican Republic. The Department of Homeland Security, Bureau of Citizenship and Immigration Services ("Government"), has filed a motion to dismiss the petition. Gomez has objected.
This matter has been referred to me pursuant to 28 U.S.C. § 636 (b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend that the Government's motion to dismiss be granted. I have determined that a hearing is not necessary.
Background
On December 21, 1983, Gomez entered the United States as an immigrant in New York City. Gomez's mother and two sisters are legal permanent residents, his grandmother and grandfather are U.S. citizens, and he fathered two children who are U.S. citizens. Despite his family ties in this country, Gomez opted to engage in illegal drug activity. In 1996, Gomez was convicted in the Rhode Island state courts of possession of heroin, in violation of state law. See R.I. Gen. Laws § 21-28-4.01(C)(1); See also R.I. Gen. Laws § 21-28-2.08. The state court sentenced him to a two year suspended sentence.
Following his conviction, the then Immigration and Naturalization Service ("INS") commenced Removal proceedings against Gomez since he was convicted of a controlled substance violation. See Section 237(a)(2)(B)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(B)(i). The INS released Gomez on bond while his removal proceedings were pending.
In 2001, Gomez was again convicted in the Rhode Island state courts, this time for the possession of cocaine, in violation of state law.See R.L Gen. Laws § 21-28-4.01(C)(1); See also R.I. Gen. Laws § 21-28-2.08. The state court sentenced him to five years, with four months to serve. Following his second conviction, the INS amended its Removal notices, alleging that Gomez was removable as an aggravated felon, see Section 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), and because he committed a drug trafficking crime. See Section 101(a)(43)(B) of the INA, 8 U.S.C. § 1101(a)(43)(B).
Gomez was also convicted of a drug offense in July 2000. The Government has indicated that conviction has been vacated, and was not relied upon during the Removal proceedings.
A hearing thereafter commenced before an Immigration Judge ("IJ"). The IJ found that Gomez's two narcotics convictions made him removable as an aggravated felon and ordered that he be deported to the Dominican Republic. Petitioner appealed the IJ's decision to the Board of Immigration Appeals ("BIA"). The BIA affirmed.
Gomez has now filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 alleging that Due Process violations occurred during his Removal proceedings. He contends the Government mis-stepped, because: (1) he was not afforded notice pursuant to 21 U.S.C. § 851; and (2) he was improperly considered an aggravated felon. I reject his contentions.
A. Whether Gomez was Entitled to Notice Pursuant to 21 U.S.C. § 851.
As his first basis for federal habeas relief, Gomez contends that his due process rights were violated because he did not receive notice pursuant to 21 U.S.C. § 851. Section 851 provides, in pertinent part:
no person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court . . . stating in writing the previous convictions to be relied upon. . . .21 U.S.C. § 851(a)(1).
Gomez contends that the Government was required to notify him of the increased punishment he faced, i.e., the removal proceedings and the detention while awaiting deportation, at the time of his second conviction. He is mistaken.
The notice provision set forth in Section 851 applies only to federal narcotics prosecutions when the federal Government seeks to enhance the penalty pursuant to 21 U.S.C. § 841, et seq., See e.g., U.S. v. Sanchez, 917 F.2d 607, 616 (1st Cir. 1990); Suveges v. U.S., 7 F.3d 6, 8-9 (1st Cir. 1993). Here, Gomez was not prosecuted for his criminal offenses by the federal authorities. Gomez's convictions were brought by the state authorities pursuant to state law and he was sentenced pursuant to state law. Thus, Section 851 is inapplicable since it applies only to federal prosecutions.
Furthermore, while Gomez may be in custody awaiting deportation, his custody is not punishment. Detention pending deportation is merely an administrative incident to the deportation process. Hermanowski v. Farquharson, 39 F. Supp.2d 148, 158 (D.R.I. 1999). And while deportation itself may have severe consequences, the Supreme Court has repeatedly held that it is not punishment. See e.g. Harisiades v. Shaughnessy, 342 U.S. 580, 594-95 (1952). It is a civil rather than a criminal proceeding. See Seale v. INS, 323 F.3d 150, 159 (1st Cir. 2003).
Gomez thus was not entitled to any type of notice pursuant to Section 851. Accordingly, this ground fails to sustain a claim for federal habeas relief.
B. Gomez was Correctly Found to Have Committed an Aggravated Felony.
As a second basis for habeas relief, Gomez contends that the IJ improperly found that he was convicted of an aggravated felony. In immigration parlance, an "aggravated felony" can be any number of a laundry list of crimes set forth in Title 8, U.S.C. § 1101(a)(43). Of importance here, Section 1101(a)(43)(B) provides that a "drug-trafficking crime (as defined in section 924(c) of Title 18)" is an aggravated felony. See 8 U.S.C. § 1101(a)(43)(B). Title 18, Section 924(c) of the U.S. Code, in turn, provides that a drug trafficking crime is "any felony punishable under the Controlled Substances Act ( 21 U.S.C. § 801 et seq.), the Controlled Substance Import and Export Act ( 21 U.S.C. § 951 et sea.). or the Maritime Drug Law Enforcement Act ( 46 App. U.S.C. § 1901 et seq.)" See 18 U.S.C. § 924(c)(2). The First Circuit has determined that a state court drug conviction can be classified as an aggravated felony if it satisfies a two prong test. The drug offense must be (1) punishable by one of the three statutes mentioned above, and (2) constitute a felony. Amaral v. INS, 977 F.2d 33, 35 (1st Cir. 1992).
Gomez was convicted of two crimes: in 1996, he was convicted of possession of heroin, and in 2001, he was convicted of possession of cocaine. Although Gomez was charged and convicted under state law, his crimes of possession are punishable under 21 U.S.C. § 844(a), part of the Controlled Substances Act. See 21 U.S.C. § 801et seq. Therefore, the fist prong is satisfied since both of his convictions are punishable under the Controlled Substances Act.
The second prong requires the court to determine if one of Gomez's drug convictions constitutes a felony. Under federal law, a felony is an offense for which the maximum term of imprisonment exceeds one year.See 18 U.S.C. § 3559(a). Pursuant to the Controlled Substances Act, the maximum sentence for possession, without prior convictions, is one year. See 21 U.S.C. § 844(a). However, one prior conviction increases the maximum penalty to over a year.Id.
Here, Gomez's first conviction, possession of heroin, carries no more than a one year sentence pursuant to federal law. See id. His second conviction, possession of cocaine, however, increases his potential punishment to more than a year. id. Therefore under federal law, his second conviction constitutes a felony.
If one looks to state law for determination of whether Gomez has been convicted of a felony, the same result would be reached.See R.L Gen Laws 21-28-4.01(C)(1); See also R.I. Gen. Laws 11-1-2. Indeed, Gomez's first conviction resulted in a two year sentence, and his second conviction resulted in a five year sentence.
Since Gomez's offenses are punishable under the Controlled Substances Act, and since his second conviction constitutes a felony under federal law, Gomez was properly found to have committed an aggravated felony.
Conclusion
For the reasons set forth above, I recommend that the Government's motion to dismiss be granted. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart. Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).