Opinion
01-CV-0216E(Sc)
January 7, 2002
MEMORANDUM and ORDER
Camron Stuart, a native and citizen of Barbados, petitioned pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 March 23, 2001 challenging a September 12, 2000 Order issued by Judge John B. Reid of the Batavia, N.Y. Immigration Court which had found him to be an aggravated felon and ordered that he be deported on such basis. Respondent filed a motion to dismiss May 25, 2001 which the undersigned referred to Magistrate Judge Hugh B. Scott pursuant to 28 U.S.C. § 636(b)(1)(B) for a Report and Recommendation ("RR") as to a determination of the merits of the factual and legal issues raised. Judge Scott filed his RR September 30, 2001 recommending that the motion to dismiss be granted and the petition for a writ of habeas corpus be denied. Petitioner timely filed objections to the RR November 26, 2001 and such were deemed submitted on the papers December 28, 2001 and have thereafter been before this Court for disposition.
Such Order became final February 26, 2001 when the Board of Immigration Appeals affirmed without opinion.
Familiarity with the pertinent facts is presumed. In his petition petitioner raised four claims. Petitioner's first claim is that, "[a]s a Legal Permanent Resident, petitioner does have and is entitled to these rights as guranteed [sic] by the Constitution of the United States of America." Petition at 3. Inasmuch as this is not properly a claim for relief it was not separately addressed in the RR. For his second claim, petitioner alleges that "he was not duly informed of the ramifications an [sic] consequence that would arise as a result of entering a plea of guilty in the criminal charges against him. This infact [sic] was a violation of his Due Process right." Petition at 3. The RR recommended that habeas corpus relief on this ground be denied because a previous felony conviction which serves as the basis for an order of deportation cannot be collaterally attacked through a habeas corpus petition challenging the deportation order. RR at 6. Petitioner's third claim is that "[h]is continued and illegal detention first under INA § 236(c) and subsequently INA Section 241 is a violation of his Due Process by the INS." Petition at 3. The RR did not address this claim because such claim would be mooted by the dismissal of his petition. RR at 6-7. Petitioner's Fourth and final claim is that he "was infact [sic] ineffectively represented by counsel during the entire administrative proceedings brought against him by the INS. This is a violation of his Fifth Amendment Right." Petition at 4. The RR recommended that habeas corpus relief on this ground be denied on the basis that "petitioner is really arguing that he was denied the right to counsel at the hearing. Because deportation hearings are civil rather than criminal proceedings, aliens have no Sixth Amendment right to counsel." RR at 4.
In his objections to the RR, petitioner creatively argues that he was not actually claiming that he was deprived of his right to appointed counsel in violation of the Sixth Amendment — Judge Reid had adjourned the deportation hearing three times to allow petitioner an opportunity to retain counsel —, but rather that he was deprived of his right to the effective assistance of counsel because he was not competent to represent himself. Petitioner makes no claim that he was mentally incompetent, but rather argues that he was not competent to represent himself in the deportation hearing because he lacked the necessary legal training to do so, with the result that his self-representation was ineffective and his right to effective assistance of counsel was therefore violated. Such is a non-sequitur, however, because where there is no right to counsel there can be no constitutional violation predicated upon the ineffective assistance of counsel. Petitioner's objection to the RR on such basis will therefore be overruled.
In his objections, petitioner also argued that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, ("IIRIRA") Pub.L. No. 104-208, 110 Stat. 3009-546 (1996) is facially unconstitutional as a violation of the right to substantive due process because its provisions are draconian in that they make all aggravated felons ineligible for relief from deportation regardless of the seriousness of the conduct underlying the felony conviction which forms the basis for the order of deportation. The only constitutional challenge to IIRIRA petitioner had raised in his petition, however, was related to his third claim concerning his detention pending deportation — i.e., "Petitioner furtheer [sic] challenges the unconstitutionality of the 1996 enactment of IIRIRA and the AEDPA in as much as it perpetuates the prolonged and indefinite detention of individuals contesting deportation." Petition at 2. Inasmuch as petitioner did not claim that IIRIRA was facially unconstitutional as a violation of substantive due process in his petition — he only mentioned such in his supporting memorandum of law —, it is not properly before this Court.
Accordingly, it is hereby ORDERED that petitioner's objections to the RR are overruled, that the RR is adopted in its entirety, that respondent's motion to dismiss is granted, that the petition for habeas corpus is dismissed and that this case shall be closed in this Court.