Opinion
CIVIL ACTION No. 02-3163CM
December 20, 2002.
MEMORANDUM AND ORDER
Defendant was named in a one-count indictment on January 3, 2001, which charged him with illegal re-entry by a deported alien in violation of 8 U.S.C. § 1326(a). On February 26, 2001, defendant entered a plea of guilty to that charge. On May 14, 2001, defendant was sentenced to a term of imprisonment of 24 months. Defendant did not appeal. This matter is before the court on defendant's Petition to Vacate Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 21).
• Standards In reviewing a § 2255 petition, the court presumes that the proceedings which led to defendant's conviction were correct. Klein v. United States , 880 F.2d 250, 253 (10th Cir. 1989). To prevail, defendant must show a defect in the proceedings which resulted in a "complete miscarriage of justice." Davis v. United States , 417 U.S. 333, 346 (1974). Defendant bases his request for relief on the recently decided Supreme Court case of Immigration and Naturalization Service v. St. Cyr , 533 U.S. 289 (2001). Defendant claims that, pursuant to St. Cyr , his conviction in this case is defective because the deportation on which the conviction is based was in violation of his constitutional rights.
• Discussion Defendant first came to the United States from Mexico as a teenager. On June 1, 1988, defendant was granted temporary residency status pursuant to § 210 of the Immigration and Naturalization Act (INA). In November 1993, defendant pled guilty to felony possession of cocaine in Superior Court, Dekalb County, Georgia. In October 1997, a deportation hearing was held, and defendant was deported because of his 1993 felony conviction. Following defendant's deportation, he illegally re-entered the United States. Defendant was subsequently charged with illegal re-entry by a deported alien in violation of 8 U.S.C. § 1326(a). Defendant argues that he should have been eligible for a waiver of his deportation in 1997. Defendant contends that, due to the Immigration and Naturalization Service's (INS) erroneous interpretation of the newly enacted Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009, he was deprived of his right to apply to the Attorney General for a waiver of deportation under § 212(c) of the INA.
º Relevant Law Under the laws in effect when defendant pled guilty in 1993 to felony possession of cocaine, an alien was deportable upon conviction for any "aggravated felony." Anti-Drug Abuse Act of 1988, 8 U.S.C. § 1227(a)(2)(A)(iii). However, pursuant to § 212(c) of the INA, an alien "lawfully admitted for permanent residence" and residing in the country continuously for at least seven years could apply to the Attorney General for a discretionary waiver from deportation.
However, the enactment of the AEDPA and IIRIRA reduced the size of the class of aliens eligible for such discretionary relief. Specifically, § 440(d) of AEDPA, enacted in 1996, amended § 212(c) of the INA by "barring relief for individuals who were deportable because they had committed certain categories of offenses," including an "aggravated felony," regardless of time served in prison. That same year, pursuant to IIRIRA, Congress repealed § 212(c) and replaced it with a new section that further limits the Attorney General's authority to grant discretionary waivers of deportation. Under IIRIRA, anyone previously convicted of an aggravated felony is precluded from seeking a waiver of deportation.
Although IIRIRA eliminated relief under the former § 212(c), the Supreme Court in St. Cyr held that relief nonetheless would remain available to aliens in removal proceedings who entered guilty pleas prior to the 1996 enactment of IIRIRA. St. Cyr , 533 U.S. at 326. In St. Cyr , the Supreme Court limited the retroactive effect of both the AEDPA and IIRIRA and held that "§ 212(c) relief remain[ed] available for aliens . . . whose [pre-AEDPA/pre-IIRIRA] convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." Id. The Supreme Court reasoned that such aliens had "settled expectations" of qualifying for § 212(c) relief at the time they had entered their pleas and therefore Congress's repeal of the provision was impermissibly retroactive as to such aliens. Id. Defendant in the case at hand falls within the class of aliens who pled guilty to a felony prior to the enactment of IIRIRA, but whose deportation hearing occurred after the statute's enactment. However, defendant's deportation occurred before the Supreme Court's decision in St. Cyr . The INS at that time erroneously applied the newly IIRIRA to preclude convicted felons from applying for a discretionary waivers, notwithstanding that their guilty pleas occurred pre-IIRIRA. This defendant therefore argues that, under St. Cyr , he was entitled to apply for the discretionary waiver set forth in § 212(c), the statute in effect when he pled guilty.
º Procedural Bars The government contends that defendant's petition is procedurally barred because defendant failed to raise his claim on direct appeal. "[Section] 2255 is not available to test the legality of matters which should have been raised on appeal." United States v. Allen , 16 F.3d 377, 378 (10th Cir. 1994) (quoting United States v. Walling , 982 F.2d 447, 448 (10th Cir. 1992)). Defendant is precluded from raising issues in a § 2255 petition which were not raised on direct appeal "unless he can show cause for his procedural default and actual prejudice resulting from the alleged errors, or can show that a fundamental miscarriage of justice will occur if his claim is not addressed." Allen , 16 F.3d at 378. The defendant has made no showing in his petition that he is entitled to relief under § 2255 even though he made no direct appeal. The court notes that defendant's judgment of conviction became final on May 18, 2001. The Supreme Court's decision in St. Cyr was handed down on June 25, 2001, more than thirty days after defendant's judgment of conviction. Thus, the time for defendant to appeal had run before St. Cyr was issued. However, the court points out that, at the time defendant pled guilty, five other circuit courts of appeal had ruled on this issue and had held that § 212(c) relief remained available for aliens whose convictions were obtained before passage of IIRIRA. See St. Cyr , 533 U.S. at 293.
The government also asserts that plaintiff's claim is time-barred. Section 2255 provides in part:
º Application of St. Cyr
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of —
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2255. Defendant's petition was apparently mailed on June 14, 2002 and filed on June 19, 2002. The petition was filed, therefore, more than one year after defendant's judgment of conviction. The government contends that neither subsection (2), (3), or (4) applies, and defendant makes no argument to the contrary. However, the court need not determine whether defendant's claims are procedurally barred. Rather, the court finds that, even if defendant's claims are not procedurally barred, defendant is not entitled to relief under St. Cyr . The court agrees with defendant that St. Cyr guides the court's analysis. However, the court finds that St. Cyr does not control this case, given defendant's residency status at the time of his deportation hearing. The express language of the INA provides that, to be eligible for a waiver under § 212(c), an alien must have been admitted for permanent residence. 8 U.S.C. § 1182(c) ("Aliens lawfully admitted for permanent shall permanent 8 C.F.R. § 212.3
There is no factual dispute that, at the time defendant was deported, he had not obtained permanent residency status. Rather, the INS had granted defendant only temporary residency status in 1988. Further, defendant agreed in the factual basis for his plea agreement that he "had been granted temporary residence status in 1988, but that he lost that status after he was convicted on November 29, 1993, of possession of cocaine in the Superior Court of the State of Georgia, DeKalb County." (Plea Agreement at 2). Thus, even though defendant may have in fact lived in the United States the preceding seven years, he nonetheless lacked permanent residency status. As such, defendant was explicitly ineligible for the waiver.
Defendant in this case was never eligible for discretionary relief under § 212(c) because he was not a permanent resident. Thus, defendant could not have developed any sort of "settled expectations" at the time he pled guilty that he would later obtain a waiver of deportation. Accordingly, the court finds that the holding in St. Cyr is inapplicable to the facts of this case. Defendant is not entitled to relief under § 2255. IT IS THEREFORE ORDERED that defendant's Petition to Vacate Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 21) is denied.