D'Alessandro v. Mukasey
| Decision Date | 29 May 2009 |
| Docket Number | No. 08-CV-914(RJA)(VEB).,08-CV-914(RJA)(VEB). |
| Citation | 628 F.Supp.2d 368 |
| Parties | Giuseppe D'ALESSANDRO, Petitioner, v. Michael B. MUKASEY, United States Attorney General; Michael Chertoff, Secretary of the Department of Homeland Security; Martin Herron, Assistant Field Office Director for the Buffalo Federal Detention Facility for United States Immigration and Customs Enforcement; and all other persons exercising direct legal control over the Petitioner, Respondents. |
| Court | U.S. District Court — Western District of New York |
Brian L. Gardner, Sullivan Gardner PC, New York, NY, for Petitioner.
Gail Y. Mitchell, U.S. Attorney's Office, Buffalo, NY, for Respondents.
This case was referred to Magistrate Judge Victor E. Bianchini, pursuant to 28 U.S.C. § 636(b)(1). On December 15, 2008, petitioner filed a petition for a writ of habeas corpus. On March 25, 2009, Magistrate Judge Bianchini filed a Report and Recommendation, recommending that petitioner's petition be granted and that a writ of habeas corpus issue directing his release from custody subject to appropriate conditions of supervision of DHS/ICE. On the same day, Magistrate Judge Bianchini issued a separate order requiring petitioner's immediate release on bail pending the outcome of the habeas proceedings. This Court denied a motion by the government for an emergency stay of Magistrate Judge Bianchini's order of immediate release. Petitioner was released from DHS/ICE custody on or around April 2, 2009.
Respondents filed objections to the Report and Recommendation on April 15, 2009 and petitioner filed a response thereto. Oral argument on the objections was held on May 22, 2009.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the Report and Recommendation. Additionally, the Court notes that petitioner has been released for approximately eight weeks as of the date of this Order. Over the past eight weeks, according to representations from petitioner's counsel, petitioner has maintained contact with his state parole officers and lived at home with his family without incident. To date, petitioner's conduct since his release further justifies the findings that Magistrate Judge Bianchini made in his Report and Recommendation.
Accordingly, for the reasons set forth in Magistrate Judge Bianchini's Report and Recommendation, petitioner's petition is granted. A writ of habeas corpus shall issue directing his continued release from custody subject to appropriate conditions of supervision of DHS/ICE.
The Clerk of Court shall take all steps necessary to close the case.
SO ORDERED.
REPORT AND RECOMMENDATION
Represented by counsel, petitioner Giuseppe D'Alessandro (hereinafter, "D'Alessandro" or "petitioner"), an alien under a final order of removal, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his continued detention in respondents' custody (hereinafter, "respondents", "DHS/ICE", or "the Government"). This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1). For the reasons that follow, I recommend that D'Alessandro's petition be granted and that a writ of habeas corpus issue directing his release from custody subject to appropriate conditions of supervision by DHS/ICE.
On July 25, 1978, petitioner entered the U.S. under a B-2 visa. On June 22, 1981, his immigration status adjusted at Philadelphia, PA, to a Legal Permanent Resident under INA § 245. Petitioner is married with one son; his wife and son are U.S. citizens and live in Queens, New York. On August 14, 1989, D'Alessandro was arrested on charges of Kidnaping 1st (with intent to collect ransom; class A-1); Attempted Robbery 1st (class C); Coercion 1st (class D); Non-Auto Grand Larceny 2nd (class D); and Assault 2nd (intent to cause bodily injury). This was his first and only contact with the criminal justice system.1 D'Alessandro remained free on bond during the pendency of his criminal proceedings.
Apparently with the advice and consent of his trial counsel, D'Alessandro rejected a plea offer involving probation only and no jail time, and elected to proceed to trial. On June 25, 1991, a guilty verdict was entered in New York State Supreme Court, County of New York, following a jury trial. Upon D'Alessandro's motion to set aside the verdict under New York Criminal Procedure Law ("C.P.L.") § 330.30, the trial court granted a new trial, holding that the cumulative effect of the prosecutor's misconduct was overwhelmingly prejudicial. The District Attorney appealed. On December 22, 1993, the Appellate Division, First Department, reversed the trial court and reinstated the jury's verdict. People v. D'Alessandro, 184 A.D.2d 114, 591 N.Y.S.2d 1001 (App. Div. 1st Dept.1992). The First Department held that the prosecutor "on occasion did exceed the bounds of legitimate fair comment as when, for example, she suggested that a witness might be exposing himself to danger by testifying, appealed to the jurors' generalized fear of crime, and their sympathies, and vouched for the credibility of the People's witnesses." Id. (citations omitted). However, the summation "was within the range of acceptability, and it cannot be reasonably found that she tried to depict defendant as a mobster who merited punishment for his general character and intimidation of witnesses rather than for the specific crimes with which he was charged." Id. Because the First Department found the proof of guilt "overwhelming," any misconduct was "harmless error" and petitioner's right to a fair trial "was not abridged as a matter of law." Id. Accordingly, "the trial court was not warranted in granting the motion to vacate the conviction under C.P.L. § 330.30." Id.
Throughout this time, D'Alessandro was released on bond. On April 20, 1993, petitioner appeared voluntarily for sentencing, knowing that he was to be sentenced to a minimum of fifteen (15) years in prison. After stating his dismay at having to sentence D'Alessandro to jail time, the trial court imposed concurrent terms of imprisonment, the longest of which was 15 years to life on the Kidnaping 1st conviction. This was the mandatory minimum under the Penal Law.
On May 10, 1993, petitioner entered NYSDOCS and serves his term at Arthurkill Correctional Facility on Staten Island. During his incarceration, he maintained an "exemplary" record, as attested to by the District Attorney, John Irwin, who on dated June 26, 2007, wrote a letter of support together with the prosecuting deputy, regarding D'Alessandro's first, successful parole application. (Docket No. 7-2).
On August 22, 1996, the First Department affirmed D'Alessandro's conviction on direct appeal, finding that the evidence was "overwhelming," rendering the any prosecutorial misconduct harmless error; the jury's determination as to fact and credibility were supported by the record; the claim regarding the propriety of the kidnaping jury instructions was un preserved; and the People v. D'Alessandro, 230 A.D.2d 656, 656-57, 646 N.Y.S.2d 792 (App.Div. 1st Dept.1996).
On February 19, 1998, DHS issued a notice to appear based upon his New York state convictions, which are considered "aggravated felony" convictions rendering petitioner removable under INA § 237(a)(2)(A)(iii).
On or about October 26, 1998, or November 17, 1998, an Immigration Judge ("IJ") in Fishkill, New York, ordered petitioner deported. The IJ found petitioner ineligible for a waiver of his inadmissibility under former section 212(c) of INA, 8 U.S.C. § 1182(c), because he was in removal proceedings.
On March 30, 1999, the Bureau of Immigration Appeals ("BIA") affirmed the IJ's decision ordering deportation.
On October 15, 2007, ICE informed DHS that they had valid travel document for petitioner, and when New York State Department of Correctional Services ("NYSDOCS") set a release date, they would take him into DHS custody and arrange for his departure from the U.S.
On November 19, 2007, after serving 14½ years of 15-to-life sentence, petitioner was released on parole after his first parole appearance. He was immediately placed in custody of U.S. immigration.
On November 27, 2007, the BIA denied D'Alessandro's motion to reopen immigration proceedings based upon petitioner's claim that he was eligible for relief under former § 212(c) of the INA in light of the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).2
On November 27, 2007, D'Alessandro filed petition for review of BIA's denial of motion to reopen in the United States Court of Appeals for the Second Circuit. He also moved for a formal stay order from Circuit.
On February 19, 2008, DHS denied D'Alessandro release after the 90-day custody review on the basis that his removal was "reasonably foreseeable." Charles Mule, Acting Field Office Director, issued the...
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