Opinion
05 Civ. 3107 (DC).
September 28, 2006
DANIEL HENRY, Petitioner Pro Se, c/o Judith Hall, Bronx, New York, ( Last known address) — and — Buffalo Federal Detention Facility, Batavia, New York, ( Last known place of detention).
ROBERT T. JOHNSON, ESQ., District Attorney, Bronx County, Attorney for Defendant, By: Jean Soo Park, Esq., Assistant District Attorney, Bronx, New York.
MEMORANDUM DECISION
Pro se petitioner Daniel Henry petitions this Court for a writ of habeus corpus pursuant to 28 U.S.C. § 2254. Before the Court is respondent's motion to dismiss the petition as moot pursuant to Article III, Section 2 of the United States Constitution, for lack of a case or controversy, and Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted, on the ground that collateral consequences cannot arise from the challenged conviction.
On May 14, 1993, a judgment was rendered in Bronx County Supreme Court convicting Henry, after a guilty plea, of Criminal Possession of a Controlled Substance in the Fifth Degree. That conviction is not challenged in the instant petition. On May 2, 2002, Henry was convicted in Bronx County Supreme Court, after a jury trial, of Criminal Sale of a Controlled Substance in the Third Degree and Criminal Sale of a Controlled Substance In or Near School Grounds. It is this conviction that Henry challenges; Henry asserts that the trial court erred in disallowing his counsel's peremptory challenges during voir dire on reverseBatson grounds. The conviction was affirmed by the Appellate Division, First Department on October 30, 2003, People v. Henry, 766 N.Y.S.2d 551 (1st Dep't 2003), and the New York Court of Appeals denied leave on December 30, 2003, People v. Henry, 1 N.Y.3d 573 (2003).
On November 18, 2004, the United States Department of Homeland Security Bureau of Immigration and Customs Enforcement began removal proceedings against Henry because of his 1993 and 2002 felony drug convictions. This petition was filed pursuant to § 2254 on February 9, 2005. Henry was deported to Jamaica on January 26, 2006. Consequently, respondent seeks to dismiss the petition as moot, claiming that no case or controversy exists because Henry is permanently barred from re-entering the United States on an independent ground from the challenged 2002 conviction.
In Sibron v. New York, the Supreme Court held that a habeas petition challenging a criminal conviction is rendered moot by a release from imprisonment only if "there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction." 392 U.S. 40, 57 (1968). The Second Circuit has held that where a petitioner is permanently barred from the United States "on a wholly separate ground, the currently challenged . . . conviction can have no meaningful effect on his admissibility and hence cannot serve as a possible collateral consequence." Perez v. Greiner, 296 F.3d 123, 126 (2d Cir. 2002).
Although Henry was deported in part because of his 2002 conviction, his 1993 conviction was sufficient by itself to permanently bar him from the United States because it was an aggravated felony offense and a violation of a law relating to a controlled substance. See N.Y.P.L. § 220.06; 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1227(a)(2)(B)(i), and 1182(a)(2)(A)(i)(II). Thus, because there was an independent basis for his deportation, he cannot suffer collateral consequences on the basis of his 2002 conviction, and Perez is controlling. In light of Henry's deportation, respondent's motion to dismiss is granted. The petition is dismissed as moot; the Clerk of the Court is directed to enter judgment accordingly and to close this case. Copies of this Decision will be forwarded to Henry at the Buffalo Federal Detention Center, his last known place of detention, as well as to the last known address Henry supplied to the Court.
SO ORDERED.