Opinion
No C 02-1963 VRW
May 2, 2002
ORDER
Francisco Saldana petitions the court for a writ of habeas corpus under 28 U.S.C. § 2241 and a stay of removal pending adjudication of his habeas petition. On April 22, 2002, this court issued a temporary restraining order enjoining respondent from deporting petitioner and issued an order to show cause why a writ of habeas corpus should not issue. See 4/22/2002 Order (Doc # 6) at 6. The court finds this matter suitable for determination without oral argument and VACATES the hearing set for May 2, 2002. See Civil LR 7-1(b). For the reasons that follow, the petition for a writ of habeas corpus (Doc # 1) is DENIED.
I.
Francisco Saldana, a citizen of Mexico, became a lawful permanent resident on August 18, 1973. See Fernandez Decl (Doc # 5), Exh A at 1. On November 5, 1988, Saldana was arrested in the shooting death of Bryan Peck. See Fernandez Decl (Doc # 5), Exh B at 1. On May 26, 1989, petitioner was convicted of second degree murder and sentenced to a term of imprisonment of seventeen years to life. See Fernandez Decl (Doc # 5), Exh D at 1. An appellate court overturned this conviction.
On February 13, 1992, petitioner pled nolo contendre to voluntary manslaughter of Bryan Peck. See Fernandez Decl (Doc # 5), Exh E at 1. On February, 28, 1992, petitioner was sentenced to 11 years in prison for this offense and a sentence enhancement of 2 years because he used a firearm when committing the offense. See Fernandez Decl (Doc # 5), Exh F at ¶¶ 1-2. In determining the time he would serve, petitioner received credit for the 1211 days that he served under his original conviction for second degree murder under California Penal Code § 2900.1. After his sentence for his voluntary manslaughter conviction with firearms enhancements was imposed, petitioner served 1761 days, from February 28, 1992, to December 26, 1996. Petitioner's total time incarcerated for killing Peck was 2972 days, over 8 years.
Based on his manslaughter conviction, respondent instituted removal proceedings against petitioner. See Fernandez Decl (Doc # 5), Exh H. On August 20, 1998, an immigration judge found petitioner ineligible for § 212(c) relief because the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub L No 104-132, 110 Stat 1214, (AEDPA) retroactively foreclosed such relief. See Fernandez Decl (Doc # 5), Exh J at 5. Petitioner appealed to the BIA, which dismissed his appeal on February 26, 2002. See Fernandez Decl (Doc # 5), Exh M at 2. The BIA applied INS v. St. Cyr, 533 U.S. 289, 326 (2001) and held that, while the AEDPA did not apply retroactively to foreclose § 212(c) relief, petitioner would not have been available for that relief pre-AEDPA. See id. The BIA based its decision that petitioner was ineligible for § 212(c) relief under pre-AEDPA law on two separate reasons: first, petitioner was convicted of an aggravated felony for which he actually served at least five years of incarceration; and second, petitioner was convicted of a firearms offense. See id. at 2 n1. Petitioner asserts that the BIA's determination was in error.
II
Petitioner brings this habeas action under 28 U.S.C. § 2241. The Supreme Court recently settled that federal district courts retain jurisdiction to hear § 2241 petitions in immigration removal cases, despite the fact that the AEDPA and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) eliminated direct judicial review. See INS v. St. Cyr, 533 U.S. at 305.
In addition, in order for the court to exercise jurisdiction over a habeas proceeding, the petitioner must be in custody. See 28 U.S.C. § 2241(c). In immigration cases, the "in custody" requirement is satisfied if petitioner has received a final order of deportation. See Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir 1995). The court therefore has jurisdiction to hear this petition for the writ of habeas corpus.
III
Petitioner contends that the BIA erred in ruling that petitioner was ineligible for discretionary relief under § 212(c). See Pet (Doc # 1) at ¶¶ 16, 20. The BIA provided two reasons for its ruling: first, that petitioner had actually served more than five years in prison and second, that petitioner was convicted of a firearms offense. Either of these reasons is sufficient to render petitioner ineligible for § 212(c) relief. While not conceding the issue, respondent does not contest that the BIA's determination that petitioner was convicted of a firearms offense was correct; instead, respondent argues that any BIA error was harmless because petitioner was ineligible for § 212(c) relief due to the length of time he served in prison. See Ans (Doc # 3) at 8.
Both parties agree that if petitioner actually served five years or more years for this conviction, he would be ineligible for § 212(c) relief. See Ans (Doc # 3) at 6; Pet B.R. (Doc # 1) at ¶ 21. Petitioner argues that he served only 1761 days, about 4 years and 10 months time, on his manslaughter conviction. Respondent counters that the time petitioner served under his murder conviction, 1211 days or about 3 years and 4 months, should count toward the total time petitioner was incarcerated for the manslaughter charge because he received credit under his manslaughter sentence for time served under his murder sentence. If respondent is correct, petitioner has served at least 6 years and 1 month for his manslaughter conviction, rendering § 212(c) relief unavailable. In making this calculation, the court excludes up to 2 years of time served for the firearm sentence enhancement. Thus, the issue before the court is whether the time credited to petitioner because of his incarceration for the murder conviction under California Penal Code § 2900.1 should be included in the actual time petitioner served under his manslaughter conviction.
The court concludes that the time credited under California Penal Code § 2900.1 should be applied toward the total time served by petitioner. California Penal Code § 2900.1 states:
Where a defendant has served any portion of his sentence under commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts.
Petitioner's timed served under the murder conviction qualified as credited time because his murder conviction was declared invalid and his subsequent manslaughter conviction was based upon the same criminal acts. Had petitioner not received such credit, his actual time served under the manslaughter conviction would have been significantly longer.
In similar circumstances, the BIA has held that credit for pre-trial time served pursuant to California Penal Code § 2900.5 should be counted toward the eligibility requirements for § 244(e), a separate provision for relief that requires that an alien have served less than 180 days in prison. See Matter of Valdovinos, 18 I N Dec 343 (BIA 1983). The court finds the reasoning of Mezrioui v. INS persuasive:
As Mezrioui gets credit against his sentence for pretrial time served * * *, logic suggests that those same periods should be included in the calculation for purposes of determining whether petitioner has served five years imprisonment and is thus ineligible for 212(c) relief.154 F. Supp.2d 274, 277 n. 2 (D Conn 2001).
The court therefore rules that petitioner's credited time served under his murder conviction should be included in the calculation of the actual time served under his conviction for voluntary manslaughter. Accordingly, the petition for a writ of habeas corpus (Doc # 1) is DENIED. The court hereby lifts the injunction issued on April 22, 2002, enjoining respondent from deporting petitioner. The clerk is directed to close the file and terminate all pending motions.