Opinion
CRIMINAL ACTION No. 00-20179-01-KHV, Civil No. 02-3175
January 21, 2003.
MEMORANDUM AND ORDER
This matter comes before the Court on defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #35) filed June 24, 2002. For reasons set forth below, defendant's motion is overruled.
Factual Background
Defendant is a citizen and national of Mexico. On January 11, 1996, defendant entered a plea of guilty to aggravated battery in the District Court of Wyandotte County, Kansas. On March 14, 1996, in the Circuit Court of Platte County, Missouri, defendant entered a plea of guilty to possession of a controlled substance with intent to distribute. Two years later, on June 12, 1998, defendant was deported to Mexico. He unlawfully reentered the United States and was again deported on September 30, 1998. He again unlawfully reentered the United States on September 29, 1999 and was yet again deported on September 29, 1999.
On December 1, 2000, a grand jury charged defendant with unlawful reentry by an alien deported after convictions for aggravated felonies, in violation of 8 U.S.C. § 1326. On March 7, 2001, a jury convicted defendant as charged. Defendant appealed his conviction and the Tenth Circuit affirmed. See United States v. Payan-Carillo, 23 Fed. Appx. 997, 2002 WL 102640 (10th Cir. January 28, 2002).
On June 24, 2002, defendant filed this motion pursuant to 28 U.S.C. § 2255, claiming that the Court must vacate his conviction in light of INS v. St. Cyr, 533 U.S. 289 (2001). In particular, defendant alleges that his most recent deportation proceeding on September 29, 1999 was illegal because the administrative law judge did not provide him the opportunity to request a waiver of deportation under 8 U.S.C. § 1182(c). He contends that his deportation was therefore invalid, and that his conviction for unlawful reentry after deportation, in violation of 8 U.S.C. § 1326 — for which he asserts the 1999 deportation was an element — is also invalid.
Standard of Review
The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant's conviction were correct. See 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).
Analysis
Preliminarily, the Government asserts that defendant's claim is procedurally barred because he failed to raise it 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). Defendant is precluded from raising issues in a Section 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." Id. Plaintiff relies upon ineffective assistance of counsel to show cause for his procedural default.
Defendant was convicted on March 7, 2001. Defendant filed a notice of appeal on June 4, 2001. The Supreme Court issued the St. Cyr opinion on June 25, 2001 — before defendant had filed his appellate brief. Defendant asserts that his appellate counsel should have raised St. Cyr in that brief on appeal.
As cause for failing to raise the St. Cyr issue on direct appeal, defendant appears to assert ineffective assistance of counsel. To establish ineffective assistance of counsel, defendant must show that the performance of counsel fell below an objective standard of reasonableness, and that the deficient performance was prejudicial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudicial performance defendant must show a "reasonable probability" that but for counsel's unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. Thus, defendant can only show ineffective assistance if he can show that the St. Cyr exception arguably applies to the facts in his case. As set forth below, defendant does not allege facts sufficient to support such a finding. Thus he cannot establish that counsel's failure to raise the issue was prejudicial to his case. Furthermore, the Government correctly asserts that defendant has not alleged in any pleadings or briefs that he is actually innocent, and he therefore cannot show a fundamental miscarriage of justice.
Alternatively, on the merits, the Government argues that the St. Cyr rule is not a new rule that applies retroactively. See Teague v. Lane, 489 U.S. 288, 307, 334 (1989) (only two types of new rules apply retroactively to cases on collateral review: (1) a rule which places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," and (2) a watershed constitutional rule of criminal procedure which requires observance of "those procedures that . . . are implicit in the concept of ordered liberty"). The Court need not address these questions because defendant has not alleged facts that would support relief under St. Cyr.
An analysis of plaintiff's theory requires some background on changes in immigration law.
Before 1996, Section 212(c) of the Immigration and Naturalization Act provided that "[a]liens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General." 8 U.S.C. § 1182(c), repealed by Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (IIRIRA). Literally, Section 212(c) applied only to exclusion proceedings. See St. Cyr, 533 U.S. at 295. The Board of Immigration Appeals, however, construed the law to allow a discretionary waiver of deportation to any permanent resident alien with a lawful unrelinquished domicile of seven consecutive years. If the Attorney General granted such a waiver, deportation proceedings ended and the alien remained as a permanent resident. See id.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) restricted the class of aliens who were eligible for a waiver of deportation. See Pub.L. No. 104-132, 110 Stat. 1214. In 1996, Congress also passed the IIRIRA, which repealed Section 212(c). The IIRIRA limited the Attorney General's authority to cancel removal of aliens who had not previously been convicted of an aggravated felony. See Pub.L. No. 104-208, 110 Stat. 3009. In St. Cyr, the United States Supreme Court addressed the "obvious and severe retroactive effect" of eliminating Section 212 discretionary relief from deportation for aliens who had relied on that potential relief in entering plea agreements and who were later denied waiver because of the new law.
The Tenth Circuit recently explained the holding in St. Cyr as follows:
In St. Cyr, the Supreme Court refused to apply IIRIRA retroactively to prevent discretionary relief for an alien who pleaded guilty to a crime prior to IIRIRA's passage. IIRIRA eliminated the ability of an alien to plead guilty to certain crimes yet retain the right to seek relief from deportation. Analyzing the retroactive application of this particular IIRIRA provision as mandated in Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Court first determined that Congress' intent to make the provision preventing deportation relief for aliens who pleaded guilty to certain crimes retroactive was not sufficiently clear. See St. Cyr, 533 U.S. at ___, 121 S.Ct. at 2290.
Because Congress' retroactive intent was not clearly expressed, the Court then examined Landgraf's second factor, "whether the new provision attaches new legal consequences to events completed before its enactment." St. Cyr, 533 U.S. at ___, 121 S.Ct. at 2290 (quoting Landgraf, 511 U.S. at 270, 114 S.Ct. 1483) (citation omitted). The Court noted that plea agreements involve a quid pro quo between criminal defendants and the government. See id. at 2291. By entering a guilty plea, St. Cyr waived several of his constitutional rights, including the right to a trial. As a result of that decision, the government also received "numerous `tangible benefits, such as promptly imposed punishment without the expenditure of prosecutorial resources.'" Id. (citation omitted). Additionally, the Court noted that aliens like St. Cyr considered immigration implications when entering into plea agreements. See id. Because Congress' retroactive intent was not clear and the retroactive application attached a new legal consequence to St. Cyr, the Court refused to retroactively apply IIRIRA's provision making aliens who plead guilty to certain crimes ineligible as a matter of law for deportation relief.
Sibanda v. INS, 282 F.3d 1330, 1334-35 (10th Cir. 2002).
As the Honorable Judge Monti L. Belot of this Court recently noted:
The Supreme Court in St. Cyr recognized the "obvious and severe retroactive effect" of eliminating discretionary relief from deportation for aliens that relied on the potential relief provided by § 212(c) when entering plea agreements prior to 1996 and were later denied waiver under the immigration reforms enacted that year. St. Cyr, 533 U.S. at 325. The Court consequently held that "§ 212(c) relief remains available for aliens . . . whose 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. at 326.
United States v. Miguel Basurto-Robles, No. 02-3189-MLB, slip op. at 3 (unpublished) (D.Kan. Sept. 11, 2002).
Defendant claims that his 1999 deportation proceedings violated his right to due process because the immigration judge did not advise him of possible relief under Section 212(c). He asserts that his deportation in 1999 was based upon convictions that occurred before the 1996 immigration reforms, and that he would have applied for a waiver of deportation if he had known of his right to do so. He argues that his conviction in this case, for reentry after convictions of aggravated felonies and deportation, is void because it is based upon his allegedly improper deportation in 1999. See United States v. Mendoza-Lopez, 481 U.S. 828 (1987) (noting due process limitations on deportation hearings; allowing defendant right to collaterally challenge use of earlier deportation proceeding). The government, however, did not rely upon the 1999 deportation in this case; it relied upon proof that defendant was deported on June 12, 1998 and September 30, 1998. Defendant does not attack those deportations.
More fundamentally, defendant misapprehends the St. Cyr exception, which prohibits the retroactive elimination of discretionary relief from deportation for aliens who relied on the potential relief under Section 212 when they entered guilty pleas to felonies before 1996, and who later were denied a waiver. Plaintiff does not allege that he relied upon potential relief under Section 212 when he pleaded guilty to aggravated battery and possession of a controlled substance with intent to distribute.
Furthermore, defendant does not assert facts to support his conclusory claim that he was eligible for Section 212(c) relief in 1996, at the time he pleaded guilty to the two felonies. Under former Section 212(c), an alien is eligible to apply for a waiver from deportation if he was "lawfully admitted for permanent residence" and had acquired seven consecutive years of lawful residence. See 8 U.S.C. § 1182(c) (repealed 1996). "Lawfully admitted for permanent residence" refers to "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws." 8 U.S.C. § 1101(a)(20). "Permanent residence status is [thus] an essential element for discretionary relief under [§ 212(c)]." Basurto-Robles, slip op. at 4 (quoting Michelson v. I.N.S., 897 F.2d 465, 469 (10th Cir. 1990)).
Defendant concedes that he was never lawfully admitted for permanent residence in the United States and that he never maintained a lawful residence for seven consecutive years. Thus, he was never eligible for a discretionary waiver of deportation under Section 212(c). In a footnote in his Section 2255 petition, defendant asserts that he might have been eligible for relief from deportation based on Section 244(a) (suspension of deportation) or Section 212(h) (family hardship), see Petition, Doc. #1 at 8 n. 5, because he was married to an American citizen and had a child who was an American citizen and it is "quite possible that the defendant would have been eligible to adjust his status." Defendant's Reply To The Government's Response To Motion To Vacate, Set Aside Or Correct Sentence (Doc. #45) filed October 21, 2002, at 3. Defendant's argument on this point is also off the mark.
St. Cyr dealt only with the discretion of the Attorney General to grant relief from deportation to "any permanent resident alien with a `lawful unrelinquished domicile of seven consecutive years.'" 533 U.S. at 295 (quoting § 212(c)). St. Cyr does not address relief under Sections 244(a) and 212(h). Further, as noted above, in St. Cyr the United States Supreme Court determined that laws which eliminated discretionary relief from deportation could not be applied retroactively to aliens who had relied upon that potential relief in entering plea agreements before enactment of the 1996 laws and who were then were denied waiver under the new law. Defendant does not contend that he pleaded guilty to two felonies in early 1996 in reliance upon the possibility of obtaining discretionary relief from deportation under Section 212(c). Therefore even if the Court construed St. Cyr to apply beyond the context of Section 212, defendant has failed to allege facts on which he would be entitled to relief.
The files and records in this case conclusively show that defendant is not entitled to any relief. Accordingly, no evidentiary hearing is required. See United States v. Marr, 856 F.2d 1471, 1472 (10th Cir. 1988) (no hearing required where defendant's Section 2255 petition may be resolved on record before court).
IT IS THEREFORE ORDERED that defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #35) filed June 24, 2002 be and hereby is OVERRULED. Pursuant to Rule 58, Fed.R.Civ.P., the Clerk is directed to enter judgment in accordance with this Memorandum And Order. The Clerk is further directed to send to defendant and the office of the United States Attorney a copy of the judgment and the docket sheet which reflects entry of judgment, and a copy of this Memorandum And Order.