Bailey v. Immigration & Naturalization Service, Civil No. 01CV2285 (JBS) (D. N.J. 6/24/2002)
| Decision Date | 24 June 2002 |
| Docket Number | Civil No. 01CV2285 (JBS) |
| Parties | DONALD BAILEY, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, FCI FORT DIX WARDEN NANCY BAILEY, ET. AL., Respondents. |
| Court | U.S. District Court — District of New Jersey |
Mr. Donald Bailey, Fort Dix, New Jersey, Petitioner pro se
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.
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.)
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) (). 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. § 2255.1 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 ().
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...
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