Opinion
Case No. 02-3176-SAC, 00-40121-01-SAC
May 15, 2003.
MEMORANDUM AND ORDER
This matter is before the court on defendant's Petition to Vacate Sentence Pursuant to 28 U.S.C. § 2255. Defendant was deported in October of 1992 after a 1991 conviction for unlawful possession with the intent to deliver a controlled substance. Thereafter, he illegally re-entered the United States and was charged by indictment on December 6, 2000, with one count of illegal re-entry by a deported alien in violation of 8 U.S.C. § 1326(a). On January 19, 2001, defendant entered a plea of guilty to that charge, and was sentenced to a term of imprisonment of 46 months. Defendant timely but unsuccessfully appealed, raising sentencing issues addressed in a brief filed by his counsel pursuant to Anders v. California, 386 U.S. 738 (1967).
§ 2255 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 recent 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 underlying deportation on which the conviction is based was in violation of his constitutional rights.
Defendant argues that he should have been eligible for a waiver of his deportation in 1992. Defendant contends that, due to the Immigration and Naturalization Service's (INS) erroneous interpretation of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDP1A), 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.
Relevant Law
Under the laws in effect in 1991 when defendant was convicted of 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, it was well established then that the Attorney General was authorized, pursuant to § 212(c) of the INA, to waive deportation of a permanent resident alien who had lawfully resided in this country for seven years and had not served more than five years of imprisonment on a conviction for an aggravated felony.
Thereafter, the enactment of the AEDP1A and IIRIRA reduced the size of the class of aliens eligible for such discretionary relief. Specifically, § 440(d) of AEDP1A, 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 AEDP1A and IIRIRA by holding that "§ 212(c) relief remain[ed] available for aliens . . . whose [pre-AEDP1A/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.
Procedural Bar
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 failed to raise this issue on direct appeal.
Defendant has neither shown any reason for not including this claim of error in his direct appeal, nor claimed that his counsel was ineffective for not having done so. Defendant states reasons why he did not raise his constitutional challenge in the deportation proceeding, but fails to address why he did not raise this issue in his direct appeal to the Tenth Circuit. Further, for reasons set forth below, 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).
Substantive Analysis
Even if the court were to reach the merits of plaintiff's claim, it would deny plaintiff's petition, for the reasons set forth below.
First, defendant's deportation proceedings occurred before the 1996 changes in IIRIRA and AEDPA, and before the Supreme Court's decision in St. Cyr. The INS at the time of defendant's deportation, and at the time of his guilty plea, did not erroneously preclude convicted felons from applying for a discretionary waivers, because the limiting language of IIRIRA, examined in St. Cyr, was not yet enacted. Thus defendant was not prevented from applying for the discretionary waiver set forth in § 212(c), the statute in effect when he pled guilty, by either AEDP1A or IIRIRA.
Secondly, defendant's residency status at the time of his deportation hearing rendered him ineligible for a waiver under § 212(c). 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 residence" may apply to the Attorney General for a waiver). The regulations further provide, "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) (emphasis added).
It is uncontested that at the time defendant was deported, he had not obtained permanent residency status. Rather, he had reentered the United States illegally and apparently never attempted to gain approval from INS to be here lawfully prior to his deportation. Thus regardless of the length of time defendant may have lived in the United States, he lacked permanent residency status and was ineligible for the waiver.
Because defendant was never eligible for discretionary relief under § 212(c), he could not have developed any sort of "settled expectations" at the time of his guilty plea 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. Although defendant contends that he was not adequately informed of his eligibility for a waiver, defendant can show no 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). 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 (Dk. 41) is denied.