Opinion
No. 02-3177-SAC, 99-40057-01-SAC
July 17, 2003
MEMORANDUM AND ORDER
This matter is before the court on defendant's petition to vacate sentence pursuant to 28 U.S.C. § 2255 and government's motion to dismiss defendant's section 2255 petition. In addition, the government has filed a response opposing defendant's petition to vacate sentence pursuant to 28 U.S.C. § 2255.
Background
Defendant was deported to Mexico under the name of Armando Arrellano-Flores, also known as Jose Luis Lopez-Ochoa, on September 1, 1995, following a delivery of cocaine conviction in the Circuit Court of the State of Oregon for the County of Multnomah. The Immigration and Naturalization Service
("INS") advised the government that defendant was found to have entered the United States on numerous occasions without having obtained the express consent of the United States Attorney General to reapply for admission. INS advised the government that the defendant had been deported on numerous occasions.
After having been found in the custody of the Shawnee County Kansas jail in May of 1999, defendant pled guilty in August 1999, to violating 8 U.S.C. § 1326(a) and 1326(b). Defendant was sentenced to 46 months imprisonment, 2 years supervised release, and a $100 special assessment.
On June 24, 2002, this court received defendant's petition to vacate sentence pursuant to 28 U.S.C. § 2255. Defendant was released early from the United States Bureau of Prisons for good time conduct on November 20, 2002. INS advised the government that sometime around December 16, 2002, defendant was deported to Mexico and his whereabouts are unknown. This court has not received a notice of an address change or any other correspondence from the defendant since the December 16, 2002 deportation.
Mootness
In its motion to dismiss defendant's section 2255 petition, the government contends that due to the fact the defendant was deported to Mexico on November 26, 2002, the defendant's 2255 petition is moot.
In order to apply to the court for relief under section 2255, an individual must be "in custody under sentence of the court." 28 U.S.C. § 2255. "In custody" refers to that which significantly restrains one's liberty from being able to do those things that free people are entitled to do in this country. Jones v. Cunningham, 371 U.S. 236, 243 (1963). This requirement has been broadly interpreted. Borbon v. United States, 1995 WL 390125, at *1-2 (S.D.N.Y. July 3, 1995). After a defendant has been released from prison, that defendant is considered to be "in custody," within the meaning of section 2255, if the defendant is under some form of restraint such as that of a term of parole or supervised release. See Jones, 371 U.S. at 241-43 (1963); Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994). Therefore, a defendant's release from custody of the Bureau of Prisons does not automatically terminate the section 2255 petition. See Carafas v. LaVallee, 391 U.S. 234, 237-239 (1968).
In the instant case, defendant Lopez-Ochoa was in custody of the United States Bureau of Prisons, or otherwise under some form of restraint, at the time this court received defendant's petition to vacate sentence pursuant to 28 U.S.C. § 2255. Therefore, the defendant has satisfied the "in custody" requirement of 28 U.S.C. § 2255 with regard to filing his section 2255 petition.
An important issue, however, is whether the defendant's subsequent release from custody has caused the section 2255 petition to be moot because it no longer presents a case or controversy under Article III, section 2, of the Constitution. Spencer v. Kemna, 523 U.S. 1, 7 (1998). "An incarcerated convict's (or a parolee's) challenge to the validity of his conviction always satisfies the case-or-controversy requirement, because the incarceration (or the restriction imposed by the terms of the parole) constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction." Id. However, once the convict's sentence has expired some concrete and continuing injury must exist for the petition to be considered. Id. That concrete and continuing injury is a "collateral consequence" of the conviction and is something other than the now-ended incarceration. Id.; see also, Carafas, 391 U.S. at 238 (1968).
In the instant case, the government relies on Spencer for the proposition that the burden rests on the defendant to specifically identify any collateral consequences related to his conviction. The government contends that defendant's section 2255 petition is moot because the defendant has not demonstrated the existence of any collateral consequences.
The Supreme Court has given two different standards governing a petitioner's burden to show collateral consequences when that petitioner is no longer in custody. So v. Reno, 251 F. Supp.2d 1112, 1121 (E.D.N.Y. 2003). First, the Supreme Court has held that collateral consequences are presumed in the case of a petitioner challenging the underlying criminal conviction because of the "obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences." Id. (quoting Sibron v. New York, 392 U.S. 40, 55 (1968)). "[A] criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction." Sibron, 392 U.S. at 57.
The second, more demanding standard the Supreme Court has given relates to a petitioner challenging a parole revocation. So, 251 F. Supp.2d at 1121. In Spencer, the Court held that collateral consequences are not presumed. Id. ( citing Spencer, 523 U.S. at 13-14). In such cases, a section 2255 petition becomes moot unless the defendant is able to demonstrate adverse "collateral consequences adequate to meet Article III's injury-in-fact requirement." Spencer, 523 U.S. at 11, 13-14. Some examples of adverse collateral consequences include the inability to vote, engage in certain businesses, or serve as a juror. Carafas, 391 U.S. at 237.
Although the Supreme Court critically addressed in Spencer the practice of assuming collateral consequences, it did not alter the Sibron presumption. So, 251 F. Supp.2d at 1121; Spencer, 523 U.S. at 8-12, 14. Rather, the Court merely declined to extend the Sibron presumption to those petitioners challenging a parole revocation. So, 251 F. Supp.2d at 1121 ( citing Perez v. Greiner, 296 F.3d 123, 125, n. 4 (2d Cir. 2002) (applying Sibron standard to a habeas petition challenging an underlying criminal conviction, but finding petition moot because there was "no possibility" of any collateral legal consequences); see also, e.g., United States v. Mercurris, 192 F.3d 290 (2d Cir. 1999) (recognizing Sibron presumption but declining to extend it to a petitioner challenging a sentence enhancement); United States v. Probber, 170 F.3d 345 (2d Cir. 1999) (recognizing Sibron presumption but finding a challenge to revocation of supervised release indistinguishable from the parole revocation at stake in Spencer).
If all petitions are moot once the petitioner is deported, INS could effectively foreclose this last remaining avenue of judicial relief, deny non-citizens due process of law, and eviscerate the meaning of the Suspension Clause simply by deporting non-citizens while their petitions are pending. So, 251 F. Supp.2d at 1123. After Sibron, a habeas petition challenging a criminal conviction can be rendered moot by a release from imprisonment " only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction." Perez, 296 F.3d at 125 (quoting Sibron, 392 U.S. at 57. (Emphasis added)). The rule in Sibron places the burden on the government to prove the absence of adverse collateral consequences when a petitioner challenges the underlying criminal conviction.
In the instant case, the government relies on Spencer in its contention that the burden rests on the defendant to specifically identify any collateral consequences related to his conviction. The present case is distinguishable from Spencer in that defendant Lopez-Ochoa is not challenging a parole revocation. Rather, he is challenging his underlying conviction. Sibron necessitates that the burden of proving the absence of adverse collateral consequences rests with the government.
In its motion to dismiss defendant's section 2255 petition, the government has failed to raise any argument that defendant does not suffer from adverse collateral consequences. Failing to raise an argument is insufficient to show that the defendant's petition is moot. Therefore, for the foregoing reasons, the court denies the government's motion to dismiss defendant's 2255 petition.
The Supreme Court asserts the presumption that collateral consequences attach to criminal convictions post-release by citing various collateral consequences such as: deportation, inability to become a citizen, impeachment evidence in future criminal trials, and increased future sentences. Perez, 296 F.3d at 125, citing Sibron, 392 U.S. at 57.
Defendant's Section 2255 Claim
The defendant's petition to vacate sentence pursuant to 28 U.S.C. § 2255 is based on the case of INS v. St. Cyr, 533 U.S. 289 (2001). The defendant claims that pursuant to St. Cyr, his conviction in this case is defective because the underlying deportation on which the conviction is based was in violation of his constitutional rights.
The defendant argues that he should have been eligible for a waiver of his deportation in 1995. Defendant contends that, due to the INS erroneous interpretation of the 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 section 212(c) of the Immigration and Nationality Act of 1952 ("INA"). The court disagrees for the reasons which follow.
IIRIRA and AEDPA do not Preclude Discretionary Waiver
First, the defendant's 1995 deportation proceedings occurred before the 1996 changes in the IIRIRA, the AEDPA, and prior to the United States Supreme Court's decision in the case of St. Cyr. At the time of the defendant's guilty plea and deportation, the INS did not erroneously preclude convicted felons from applying for discretionary waivers because the limiting language of IIRIRA, examined in St. Cyr, had not yet been enacted. Therefore the defendant was not prevented by either AEDPA or IIRIRA from applying for the discretionary waiver as set forth in section 212(c) of the INA, the statute in effect when he pled guilty.
Defendant had not Obtained Permanent Residency Status and Therefore was Ineligible to Apply for a Section 212(c) Waiver
Second, the defendant's residency status at the time of his 1995 deportation hearing rendered him ineligible for a waiver under section 212(c). The express language of the INA provides that to be eligible for a waiver under section 212(c), an alien must have been admitted for permanent residence. 8 U.S.C. § 1182(c) ("Aliens lawfully admitted for permanent residence" may apply to the Attorney General for a waiver.). The regulation further provides: "A district director or Immigration Judge shall deny an application for advance permission to enter under section 212(c) of the Act if: . . . the alien has not been lawfully admitted for permanent residence." 8 C.F.R. § 212.3(f).
It is uncontested that at the time defendant Lopez-Ochoa was deported in 1995, he had not obtained permanent residency status. Rather, he had, on numerous occasions, reentered the United States illegally and apparently never attempted to gain approval from INS to be lawfully present in the United States prior to his deportation. Regardless of the length of time the defendant may have lived in the United States, he lacked permanent residency status and was ineligible for the waiver.
Because the defendant was never eligible for discretionary relief under § 212(c), he could not have developed, at the time of his guilty plea, any expectations that he would later obtain a waiver of deportation. Accordingly, this court finds that the holding in St. Cyr is inapplicable to the facts in the instant case. Although the defendant contends he was not adequately informed of his eligibility for a waiver, the defendant does not show any due process violation or prejudice flowing therefrom, as he was not eligible for any waiver. Compare United States v. Aguirre-Tello, 324 F.3d 1181 (10th Cir. 2003).
Statute of Limitations
Third, defendant Lopez-Ochoa failed to file his section 2255 petition within the one year time limit of the AEDPA.
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 ¶ 6.
Defendant did not file his section 2255 petition attacking sentence until June 24, 2002, well over a year from the last date that a timely petition could have been filed. When a defendant does not pursue a timely appeal to the Court of Appeals, the defendant's conviction and sentence become final, and the statute of limitations begins to run on the date that the time for filing such an appeal had expired. Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999). In a criminal case, a defendant's notice of appeal must be filed in the district court within ten days of the entry of judgment. Fed.R.App.P. 4(b). If no direct appeal is taken, the judgment of conviction is final ten days after entry of the judgment on the district court's docket. United States v. Viola, 2003 WL 21545108, at *1 (E.D.Pa. July 7, 2003) ( citing Griffith v. Kentucky, 479 U.S. 314, 321 n. 6 (1987)).
In the instant case, judgment of conviction was entered in this court's docket on November 23, 1999. Defendant Lopez-Ochoa did not file a direct appeal of his conviction to the Tenth Circuit. The defendant's judgment of conviction was entered on November 23, 1999, and became final ten days following that entry of judgment, or December 3, 1999. The deadline for the defendant to file a timely section 2255 petition expired one year from December 3, 1999. Since the defendant filed an untimely section 2255 petition on June 24, 2002, his petition is procedurally barred.
Claims Must Be Raised On Direct Appeal
Fourth, the defendant's petition is procedurally barred because he failed to raise his claims on direct appeal to the Tenth Circuit. It is well established that section 2255 is not available to test the legality of matters which should have been raised on appeal. United States v. Khan, 835 F.2d 749, 753 (10th Cir. 1987), cert. denied, 487 U.S. 1222 (1988). Defendant is precluded from raising issues in a section 2255 petition that had not been 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." 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)); See also United States v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993); Khan, 835 F.2d at 753-54.
In the instant case, the defendant failed to raise his claims on direct appeal to the Tenth Circuit. In addition, the defendant has made no showing for any claim of error in a direct appeal, nor has he claimed that his counsel was ineffective for not having raised a claim in a direct appeal. Although the defendant states reasons why he did not raise his constitutional challenge in the deportation proceeding, he fails to address why he did not raise this issue in a direct appeal to the Tenth Circuit. Further, the defendant has shown no prejudice, as he had no plausible ground for relief from deportation. Accordingly, defendant is procedurally barred from pursuing this collateral attack.
Nor has defendant advanced a claim of "actual innocence" to the crime for which he was convicted. See Bousley v. United States, 523 U.S. 614, 623 (1998).
IT IS THEREFORE ORDERED that government's motion to dismiss defendant's section 2255 petition (Dk. 35) is denied.
IT FURTHER ORDERED that defendant's Petition to Vacate Sentence Pursuant to 28 U.S.C. § 2255 (Dk. 31) is denied.