Opinion
Civil No. 01cv2285 (JBS).
June 24, 2002
Mr. Donald Bailey, Fort Dix, New Jersey, Petitioner pro se.
OPINION
This matter is before the Court on petitioner Donald Bailey's application for habeas corpus relief under 28 U.S.C. § 2241, filed on May 14, 2001. Petitioner seeks (1) to have his conviction for unlawful reentry vacated and (2) an opportunity to apply for a § 212(c) waiver. Because petitioner claims ineffective assistance of counsel during the deportation proceeding and challenges the imposition of his sentence, his claim is only cognizable under 28 U.S.C. § 2255. Since Petitioner has previously filed an application for habeas corpus relief under § 2255 in the U.S. District Court for the Southern District of New York, Mr. Bailey may only present his successive petition to the United States Court of Appeals for the Second Circuit. Accordingly, Mr. Bailey's petition will be dismissed without prejudice to his right to seek leave from the Second Circuit Court of Appeals to file a successive § 2255 motion.
BACKGROUND
Mr. Bailey seeks (1) to have his conviction for unlawful reentry vacated, and (2) an opportunity to apply for a discretionary waiver under § 212(c) of the Immigration and Nationality Act (formerly 8 U.S.C. § 1152(c)). (Pet. at 1,United States v. Bailey, 56 F. Supp. 2d 381, 382 (S.D.N.Y. 1999).) In 1969, Mr. Bailey entered the United States on a non-Immigrant visa, and in 1981 he attained lawful permanent status. (Pet. at 2; Bailey, F. Supp. 2d at 382.) In 1982, the New York Supreme Court convicted him of criminal sale of marijuana, a misdemeanor. (Pet. at 2; Bailey, 56 F. Supp. 2d at 382.) In 1985, the Supreme Court of New York found Mr. Bailey guilty of the sale of a controlled substance, a felony. (Pet. at 2; Bailey, 56 F. Supp. 2d at 382.) Once again in 1987, the same court found Mr. Bailey guilty of possession of marijuana, a felony. (Pet. at 2; Bailey, 56 F. Supp. 2d at 382.) In 1988, the Immigration and Naturalization Service (I.N.S.) charged Mr. Bailey with deportability pursuant to 8 U.S.C. § 1251(a)(11) (amended as 8 U.S.C. § 1127(a)(2)(A)(i)(II)), (Pet. at 2;Bailey, 56 F. Supp. 2d at 382), which states that the I.N.S. can charge an alien convicted of one or more narcotics offenses with deportability. ( 8 U.S.C. § 1251(a)(11).)
Mr. Bailey sought a discretionary waiver of deportation under § 212(c) of the Immigration and Nationality Act, (formerly 8 U.S.C. § 1152(a)), from the Honorable Annette Elstein, the Administrative Law Judge hearing his deportation case. Immigration Judge Elstein held the § 212(c) application abandoned and ordered petitioner deported in absentia, based on repeated failures by Mr. Bailey's attorney to appear at scheduled hearings in front of the Immigration Judge, requested adjournments on five separate occasions, and Mr. Bailey's failure to supply supporting documents for the § 212(c) waiver. (Pet. at 2, 4, 7; Bailey, 56 F. Supp. 2d at 383.) Mr. Bailey alleges that the Immigration Court never addressed the merits of Mr. Bailey's application for a § 212(c) argument. (Pet. at 2-3.) The attorney filed an appeal on behalf of Mr. Bailey to the Board of Immigration Appeals (BIA), claiming that Mr. Bailey's § 212(c) request should not have been adjudged abandoned and taking responsibility for Mr. Bailey's absence. (Pet. at 7; Bailey, 56 F. Supp. 2d at 383.) On January 26, 1994, the BIA dismissed Mr. Bailey's appeal for two reasons. (Pet. at 8, Ex. F.) First, the attorney failed to file the necessary affidavit to support the appeal. (Pet. at 7; Bailey, 56 F. Supp. 2d at 383.) Second, the BIA also noted that Immigration Judge Elstein had personally instructed Mr. Bailey to appear at the July 23, 1992 hearing, with or without counsel. (Ex. F, at 2). In August 1992, Mr. Bailey was again arrested, and subsequently pleaded guilty in the New York State Supreme Court to a misdemeanor for selling heroin. (Bailey, 56 F. Supp. 2d at 383.) In 1996, Mr. Bailey was deported to Jamaica. (Pet. at 8; Bailey, 56 F. Supp. 2d at 384.)
On November 17, 1998, Mr. Bailey was arrested for illegally reentering the United States after having been deported, in violation of 8 U.S.C. § 1326. (Pet. at 8; Bailey, 56 F. Supp. 2d at 384.) Prior to sentencing in the Southern District of New York, Mr. Bailey moved to dismiss the indictment on grounds of ineffective counsel during the deportation proceeding. (Supplemental Pet. at 1; Bailey, 56 F. Supp. 2d 381.) The Court denied the motion, holding that the petitioner had failed to show that he had been prejudiced by counsel's ineffective performance or that he was deprived of his right to direct appeal of the deportation order. (Supplemental Pet. at 1; Bailey, 56 F. Supp. 2d at 386.) Mr. Bailey pleaded guilty to unlawful reentry, pursuant to 8 U.S.C. § 1326, and the District Court imposed a 60-month sentence on November 22, 1999. (Pet. at 8.) Mr. Bailey states that by pleading guilty, he waived his right to appeal the findings of the U.S. District Court for the Southern District of New York. (Supplemental Pet. at 1.)
In October 2000, Mr. Bailey petitioned the BIA to re-open his deportation proceeding, and in November 2000, the BIA denied the motion, pursuant to 8 C.F.R. § 3.2(d), which provides that an alien cannot move to re-open after deportation. (Pet. at 8, 9; C.F.R. § 3.2(d).) On May 14, 2001, Mr. Bailey petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, claiming that his due process rights had been violated due to ineffective assistance of counsel in his deportation proceedings. Because Mr. Bailey's application was incomplete, this Court ordered him to file a Supplemental Petition within thirty days of May 25, 2001, and his Supplemental Petition was timely filed on 13,2001. In addition, Mr. Bailey has previously filed a § 2255 petition in the U.S. District Court for the Southern District of New York (Pet'r's Objection at 1). That decision is still pending at this time. (Id. at 1).
This Court has already advised Mr. Bailey that it is considering recharacterizing the § 2241 claim as a § 2255 and transferring the matter to the Southern District of New York. (Notice and Order, Dec. 12, 2001, at 2.) Mr. Bailey objects to the recharacterization and asserts that § 2241 is the appropriate action since he "attacks the execution rather than the imposition of the sentence." (Pet'r's Objection at 2.)
DISCUSSION
In the instant case, Mr. Bailey petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, vacating his conviction for unlawful reentry and allowing him to apply for a discretionary waiver under § 212(c). Mr. Bailey alleges that he was denied due process of law during his deportation proceeding as a result of ineffective assistance of counsel. For the reasons discussed herein, Mr. Bailey's petition will be dismissed without prejudice to his right to seek certification in the Second Circuit Court of Appeals to file a successive § 2255 petition.I. Jurisdiction
A habeas petitioner who seeks to challenge the legality of his sentence must file a habeas corpus petition under 28 U.S.C. § 2255 with the sentencing court, while a petitioner who challenges the execution or manner of his sentence must file a petition under § 2241 in the custodial court. See Martinez Diaz v. Olsen, 110 F. Supp. 2d 295, 298-99 (D.N.J. 2000) (citing Wright v. United States Bd. of Parole, 557 F.2d 74, 77 (6th Cir. 1977)). A petition brought under § 2241 challenges the very fact or duration of physical imprisonment, and seeks a determination that the petitioner is entitled to immediate release or a speedier release from that imprisonment. Preiser v. Rodriguez, 411 U.S. 475, 484-85, 500 (1973); see also Benson v. New Jersey State Parole Bd., 947 F. Supp. 827, 829-31 (D.N.J. 1996) (noting that § 2241 is generally appropriate only for claims challenging continued execution of sentence for which immediate or speedier release is appropriate). Section 2241 claims concern a prisoner's incarceration after the fact of conviction and sentencing, including continued incarceration after the scheduled release date, parole hearing issues, or misconduct within the prison system. See Martinez Diaz, 110 F. Supp. 2d at 299.
A motion seeking to vacate, correct or set aside a sentence, however, is more appropriately brought under 28 U.S.C. § 2255. 28 U.S.C. § 2255 states:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in xcess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.28 U.S.C. § 2255 (emphasis added). Section 2255 claims concern a prisoner's trial and sentencing, including claims such as ineffective assistance of counsel, misapplication of the sentencing guidelines, or the constitutionality of trial. See Martinez Diaz, 110 F. Supp. 2d at 299 (citing United States v. DeRewal, 10 F.3d 100 (3d Cir. 1993) (asserting ineffective assistance of counsel claim under § 2255), cert. denied, 511 U.S. 1033 (1994); United States v. Marmolejos, 140 F.3d 488 (3d Cir. 1998) (attacking the misapplication of the sentencing guidelines under § 2255)).
Congress amended 28 U.S.C. § 2255 as part of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"). As of its effective date of April 24, 1996, AEDPA requires that a motion to vacate, correct or set aside a sentence under § 2255 must be filed in the sentencing court within one year of the latest of: (1) the date on which the judgment of conviction became final; (2) the date of the removal of any impediment to making such a motion was created by unlawful government actions; (3) the date on which a right asserted by the movant was first recognized by the Supreme Court and made retroactive to cases pending on collateral review; or (4) the date on which the movant could have discovered the facts supporting the claim(s) presented through the exercise of due diligence.
In this case, Mr. Bailey, like the petitioner in DeRewal, seeks to vacate, correct or set aside his sentence because he was denied due process of law as a result of ineffective counsel. Specifically, Mr. Bailey asserts that had he been afforded effective assistance of counsel during his deportation proceedings, he would likely have been granted a § 212(c) waiver, thus precluding the possibility of prosecution for unlawful reentry. While Mr. Bailey seeks to overturn his conviction based on a deprivation of due process, he does not seek a determination that he is entitled to a speedier release as a result of parole hearing issues, for example, or that his incarceration has been continued after the scheduled release date. Mr. Bailey should thus raise his claim under § 2255 in the sentencing court, the United States District Court for the Southern District of New York. See 28 U.S.C. § 2255.
Additionally, Mr. Bailey objects to the recharacterization of his § 2241 petition as a § 2255 on grounds that he is challenging "the execution rather than the imposition of the sentence." Pet'r's Objection at 1. However, by asking this Court to vacate his sentence, Mr. Bailey attacks the very imposition, not the manner or duration, of his sentence. Because Mr. Bailey attacks the imposition of the sentence for unlawful reentry, this action is more appropriately filed as a § 2255 petition. See DeRewal, 10 F.3d 100 (3d Cir. 1993) (asserting ineffective assistance of counsel claim under § 2255).
In this case, Mr. Bailey has already filed a § 2255 petition in the Southern District of New York regarding issues unrelated to this matter. Pet'r's Objection at 1. As the Third Circuit recognized in United States v. Miller, 197 F.3d 644 (3d Cir. 1999), federal law requires petitioner to consolidate all § 2255 claims into a single petition. See Miller, 197 F.3d at 649 (following the Second Circuit's decision in Adams v. United States, 155 F.3d 582 (2d Cir. 1998).). Thus, Mr. Bailey may be precluded from filing a successive § 2255 petition in the Southern District of New York. However, he may nevertheless seek leave from the Second Circuit to file a successive petition under § 2255. The Second Circuit will very likely require Mr. Bailey to demonstrate that exceptional circumstances exist before allowing him to file a successive § 2255 petition. See 28 U.S.C. § 2244.
It is unlikely that the Second Circuit will find that exceptional circumstances exist since the BIA has already dismissed his appeal and the United States District Court of Southern Distrct of New York denied his motion to dismiss the unlawful reentry indictment, after upholding the underlying deportation proceeding. See United States v. Bailey, 56 F. Supp. 2d 381 (S.D.N.Y. 1999) (holding that Mr. Bailey failed to show that he was sufficiently prejudiced by ineffective counsel to have been entitled to relief). In addition, it is likely that the one-year statute of limitations under AEDPA serves as a jurisdictional bar to Mr. Bailey's petition. Specifically, 28 U.S.C. § 2255 states that the petitioner must file his petition within one year of the date on which the judgment became final.See n. 1, supra. Here, Mr. Bailey was convicted on November 22, 1999 and filed for habeas relief nearly eighteen months later on May 14, 2001, six months after the statute of limitations had run.
Section 2244 provides in pertinent part:
No circuit or district judge shall be required to entertain an application for a writ of habeas corpus . . . if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus and the petition presents no new ground not heretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry.28 U.S.C. § 2244.
Although the Dorsainvil exception allows some petitioners to file petitions under § 2241 instead of § 2255 in limited circumstances, Mr. Bailey's claim does not meet the narrow standards of that exception. The Third Circuit recognized in In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997), that there may be some rare situations in which a prisoner who cannot satisfy the gatekeeping requirements of § 2255 should be permitted to proceed under § 2241. See Dorsainvil, 119 F.3d at 251. The Third Circuit emphasized that a prisoner's mere inability or failure to comply with the general requirements of § 2255 does not render § 2255 "inadequate or ineffective" so as to permit resort to § 2241, noting that such a holding "would effectively eviscerate Congress's intent in amending § 2255." Id. at 251.
Here, Mr. Bailey has merely failed to comply with the general procedural requirements of § 2255 by failing to consolidate all of his § 2255 claims into a single petition and, therefore, does not qualify for the narrow Dorsainvil exception. It is acknowledged that petitioner may no longer have an available avenue of § 2255 relief before the sentencing court, since a successive § 2255 petition is barred. This does not render § 2255 inadequate or ineffective where he has had the opportunity in the past to raise precisely this claim in seeking § 2255 relief. See also Cradle v. United States ex rel Miner, 290 F.3d 536, 539 (3d Cir. 2002) (holding that "[t]he provision exists to ensure that petitioners have a fair opportunity to seek collateral relief, not to enable them to evade procedural requirements.").
Additionally, Mr. Bailey cites United States v. Zarate-Martinez, 133 F.3d 1194 (9th Cir. 1998), for the proposition that where the accused is prosecuted under 8 U.S.C. § 1326, Fifth Amendment due process allows for judicial review of the underlying deportation order. Under 8 U.S.C.A. § 1326(d)(1999), an alien can collaterally attack the deportation order in District Court during a criminal proceeding for unlawful reentry if "(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair." 8 U.S.C.A. § 1326(d); see United States v. Zarate-Martinez, 133 F.3d 1194 (9th Cir. 1998) (petitioner collaterally attacked the underlying deportation order during criminal prosecution for unlawful reentry without petitioning the court for a writ of habeas corpus); see also United States v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir. 2000) (same); United States v. Anderson, 64 F. Supp. 2d 870 (S.D. Ind. 1999) (same). In Zarate, the defendant submitted a conditional guilty plea to unlawful reentry in the District Court, subject to the Appellate Court's review of the underlying deportation order. The Ninth Circuit affirmed the defendant's conviction for illegal reentry after deportation, where the defendant collaterally attacked his deportation order during a criminal proceeding, and did not use § 2241 as a vehicle to have his claim regarding the deportation order heard.
8 U.S.C.A. § 1326(d)(1999) provides that an alien may only challenge the underlying deportation proceeding during a criminal prosecution for unlawful reentry where: "(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d).
In this case, Mr. Bailey's reliance on Zarate is misplaced because he has already collaterally attacked the deportation proceeding during the criminal proceeding regarding his unlawful reentry. See Bailey, 56 F. Supp. 2d at 381. The Southern District of New York considered petitioner's ineffective assistance of counsel claim during the deportation proceedings, and determined that he was not deprived of any Constitutional right during the deportation process, nor was he unfairly denied his right to review of the deportation proceeding. See Bailey, 56 F. Supp. 2d at 386. As Mr. Bailey's petition is before this Court not in the context of a criminal proceeding, but in a civil habeas proceeding, Mr. Bailey cannot now use this Court as a substitute for review by the appellate court which he waived. Zarate does not give this Court jurisdiction to rehear Mr. Bailey's claim or to review the Southern District of New York's decision.
The First Circuit's decision in Hernandez v. Reno, 238 F.3d 50 (1st Cir. 2001) also fails to support Mr. Bailey's § 2241 petition. There, the First Circuit affirmed the dismissal of the alien's habeas corpus petition, holding that the District Court had jurisdiction to hear the § 2241 petition where the petitioner was in I.N.S. custody, filed the petition on the day of his scheduled deportation, and claimed that he was denied effective assistance of counsel during the deportation process.
Mr. Bailey presents his § 2241 petition in a procedural posture different than that presented in Hernandez. Mr. Bailey is serving a sentence for the crime of unlawful reentry into the United States after deportation had already occurred. In this case, after being deemed deportable by the Immigration Judge, Mr. Bailey appealed to the BIA, which dismissed Mr. Bailey's claim. According to the deportation appeals process as set forth in federal regulations, at that time, Mr. Bailey could have petitioned for the BIA to re-open his case, raising his ineffective counsel claim. By not moving to re-open his case prior to deportation, Mr. Bailey forfeited his right to petition the BIA to re-open under 8 C.F.R. § 3.2(d), which prohibits an alien from moving to re-open after he has already been deported.
The Immigration Judge has the authority to determine whether an alien is deportable and can issue an order of deportation. 8 C.F.R. § 240.21(a)(2001). The decision becomes final when the alien waives his/her right to appeal or if he/she fails to file a timely appeal. 8 C.F.R. § 3.39 (2001). An alien can appeal an order of deportation to the BIA, unless the order has been issued in absentia. 8 C.F.R. § 240.53(a)(2001). Upon motion from the alien, the BIA, at its discretion, can re-open or reconsider its earlier decision. 8 C.F.R. § 3.2(a)(2001). An alien has only one opportunity to file for re-opening and must do so within ninety days of the order. 8 C.F.R. § 3.2(c)(2)(2001). Further, an alien cannot move to re-open subsequent to deportation. 8 C.F.R. § 3.2(d)(2001).
If the alien is unsatisfied with the decision of the BIA, he or she can appeal the decision to either the District Court or directly to the Court of Appeals pursuant to 8 U.S.C.A. § 1252(d)(1999), which provides in pertinent part: "A court may review a final order only if (1) the alien has exhausted all administrative remedies available to the alien as of right, and (2) another court has not decided the validity of the order. . . ." 8 U.S.C. § 1252(d). The court can only enjoin the order for deportation when the alien demonstrates by clear and convincing evidence that the order for deportation is prohibited as a matter of law. 8 U.S.C.A. § 1252(f)(2)(1999).
Alternatively, while Mr. Bailey could have submitted a writ of habeas corpus while in the custody of the I.N.S. prior to deportation and, like the petitioner in Hernandez, requested judicial review of the deportation proceeding based upon an ineffective counsel claim pursuant to 8 U.S.C.A. § 1252(d), he failed to do so. See also Bejjani v. I.N.S., 271 F.3d 670 (6th Cir. 2001) (petitioner sought habeas relief under § 2241 while in I.N.S. custody prior to deportation); Lara v. Trominski, 216 F.3d 487 (5th Cir. 2000) (same); Singh v. Quarantillo, 92 F. Supp. 2d 386 (D.N.J. 2000) (same).
Thus, Mr. Bailey's § 2241 petition must be dismissed for lack of subject matter jurisdiction without prejudice to his right to seek leave to file a successive § 2255 petition before the Second Circuit Court of Appeals.
III. Conclusion
For the foregoing reasons, the petition for writ of habeas corpus will be dismissed for lack of jurisdiction. Accordingly, this Court lacks jurisdiction over Mr. Bailey's § 2241 petition and will dismiss this petition without prejudice to Mr. Bailey's right to seek leave from the Second Circuit Court of Appeals to file a successive petition under § 2255.
ORDER
THIS MATTER having come before the Court on application of petitioner Donald Bailey for habeas corpus relief pursuant to 28 U.S.C. § 2241; and the Court having considered petitioner's submissions; and for reasons set forth in the Opinion of today's date;IT IS on this ____ day of June, 2002, hereby
ORDERED that petitioner's application for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE to his right to seek leave to file a successive § 2255 petition from the Second Circuit Court of Appeals.