Dejesus Corona v. Derosa
| Decision Date | 16 July 2004 |
| Docket Number | Civil Action No. 04-603(JEI). |
| Citation | 325 F.Supp.2d 516 |
| Parties | Marcos DeJESUS CORONA, Petitioner, v. C.J. DEROSA, Warden, F.C.I. Fort Dix, Respondent. |
| Court | U.S. District Court — District of New Jersey |
Marcos DeJesus Corona, a/k/a Marco Corona, Kearney, NJ, pro se.
Christopher J. Christie, United States Attorney by J. Andrew Ruymann, Assistant U.S. Attorney, Trenton, NJ, for Respondent.
Presently before the Court is Petitioner Marcos DeJesus Corona's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons set forth below, we deny Petitioner's application.
On April 10, 1992, Petitioner, Marcos DeJesus Corona ("Corona"), a citizen of the Dominican Republic, was deported pursuant to a deportation order dated April 8, 1992, following his December 27, 1989 convictions for delivery of a Schedule II controlled substance (cocaine) and conspiracy. His deportation was effected in accordance with 8 U.S.C. § 1227(a)(2)(B)(i), which provides for the deportation of aliens convicted of certain narcotics offenses. At the time of his deportation, Corona did not contest his removal from the United States, nor did he apply to the Attorney General for reentry following his deportation.
Corona illegally reentered the United States later that year (1992) and was convicted, on December 21, 1999, of illegal reentry by an alien after deportation under 8 U.S.C. § 1326(a) & (b)(2). The Honorable Charles R. Weiner of the Eastern District of Pennsylvania sentenced Corona to forty-one (41) months imprisonment and three years supervised release.
On March 20, 2000, Corona was convicted of criminal conspiracy in the Commonwealth of Pennsylvania. The Honorable Thomas M. DelRicci sentenced Corona to four to ten years and stipulated that the sentence be served concurrent with all previously imposed sentences. Corona remained in the custody of the state of Pennsylvania at S.C.I. Houtzdale.
On November 20, 2002, a State of Pennsylvania parole board approved Corona for release on or after February 19, 2003 to Federal Bureau of Prisons or Immigration and Naturalization Service ("INS") custody. The parole board approved an April 16, 2003 release date.
On April 16, 2003, Corona was released from state custody and entered federal custody. Corona was assigned to F.C.I. Fort Dix and entered that facility on May 13, 2003. Corona alleges, and prison records confirm, that the initial computation of his federal sentence began on April 16, 2003. His initial projected release date from federal custody was April 8, 2006.
On February 9, 2004, Corona filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241:(1) challenging the computation of his prison time, specifically alleging that during his tenure in state custody, his federal sentence should have been running concurrently; (2) contesting the right of a district court judge to order deportation as a condition of supervised release;1 (3) asserting a right to a hearing to determine his deportability; and (4) claiming United States citizenship. Corona did not pursue available avenues of relief within the corrections system, and claims in his habeas petition that those avenues were denied him.
On February 17, 2004, Corona's sentence computation was updated to allow his federal sentence to commence on February 28, 2001 (while Corona was in the custody of the Commonwealth of Pennsylvania) rather than on April 16, 2003 (when he entered federal custody).2 Following a nunc pro tunc designation, Corona was scheduled for release on February 18, 2004.
On February 20, 2004, Corona was released into the custody of the Department of Homeland Security ("DHS") and scheduled for deportation on March 24, 2004, pursuant to 8 U.S.C. § 1231(a)(5), which provides that if an alien is found to have reentered the United States illegally "after having been removed or having departed voluntarily, under an order of removal, the prior order is reinstated from its original date." Corona acknowledged that his original April 8, 1992 removal order was reinstated in a Notice of Intent/Decision to Reinstate Prior Order dated February 19, 2004.
On March 23, 2004, this Court issued an Order staying Corona's deportation pending the outcome of the instant habeas petition.
As a preliminary matter, we note that our jurisdiction over this case is proper under 8 U.S.C. § 1252(b)(5) and (a)(2)(C). Although 8 U.S.C. § 1252(b)(5) confers exclusive jurisdiction for review of removal orders, including reinstatement orders, to the federal courts of appeal,3 8 U.S.C. § 1252(a)(2)(C) bars this review for criminal aliens.4 For criminal aliens, habeas petitions are the only way to apply for relief from removal orders.5 Therefore, Petitioner's application to this Court under 28 U.S.C. § 2241 was proper.
The Third Circuit has recently identified the standard of review to be used by district courts when examining the habeas petitions of criminal aliens, finding that there is no jurisdiction under 28 U.S.C. § 2241 to review the discretionary determinations or factual findings of the INS. Bakhtriger v. Elwood, 360 F.3d 414, 420 (3d Cir.2004). Rather, "the scope of review under section 2241 must be confined to questions of constitutional and statutory law." Id. at 424.6 Because we examine the application of statutory law to Corona's case, our review is appropriate under Bakhtriger.
Corona's habeas petition, together with the page of unidentified brief, claims: (1) error in the computation of his prison time, namely that during his tenure in state custody, his federal sentence should have been running concurrently; (2) that the district court judge who sentenced him unlawfully ordered deportation as a condition of his supervised release; (3) a right to hearing to determine his deportability; and (4) United States citizenship. We consider each of these claims in turn.
Corona claims that during his time in state custody, his federal sentence should have been running concurrently. Although his petition on this issue is timely, because Corona was not aware of the sentencing computation problem until he was transferred to federal custody in April of 2003, this issue is now moot. Corona has received the relief he sought; his sentence computation was adjusted and he has been released from federal prison.
Corona's next claim, that the district judge who sentenced him unlawfully ordered deportation as a condition of his supervised release, misunderstands the district court's ruling. The Honorable Charles R. Weiner of the Eastern District of Pennsylvania did not order deportation as a condition of supervised release as Corona alleges. Rather, Judge Weiner stipulated that "if deported or granted voluntary departure, the defendant shall remain outside the United States and all places subject to its jurisdiction, unless prior written permission to reenter is obtained from the pertinent legal authorities and the defendant notifies the probation officer in writing to that effect." In addition, even if Judge Weiner had ordered deportation as a condition of supervised release, a challenge to this order is time barred by 28 U.S.C. § 2255 which provides a one year statute of limitations on habeas petitions for prisoners who challenge the lawfulness of a federal sentence.7 Judge Weiner issued the above in December 1999 and Corona's habeas was not filed until February 2004.
Corona next claims that he is entitled to a hearing to determine his deportability. In order to review this claim, it is necessary to determine whether 8 U.S.C. § 1252(b)(5),8 which reinstates prior removal orders against aliens who illegally reenter the United States, applies to this case.9 If it does, Corona is precluded from seeking judicial review of this claim.
In 1996, Congress enacted two statutes which changed the landscape of immigration law. The Antiterrorism and Effective Death Penalty Act (ADEPA), Pub.L. No. 104-132, 110 Stat. 1214, and the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA), Pub.L. No. 104-208, Div. C, 110 Stat. 3009, restricted and defined judicial review of removal orders. 8 U.S.C. § 1231(a)(5) was a part of this reform.
The magnitude of the changes enacted under ADEPA and IIRIRA raised questions as to whether provisions like 8 U.S.C. § 1231(a)(5), which reinstates original deportation orders against aliens who subsequently illegally re-enter the United States and bars review of those orders, could be applied retroactively to aliens whose initial deportation orders were issued prior to the statute's effective date and who, like Corona, also reentered prior to the statute's effective date. Corona, who was deported on April 10, 1992, illegally reentered the United States later that same year. Declaration of Anna Gbur, Assistant Chief Counsel, Newark Office of United States Immigration & Customs Enforcement, DHS, (hereinafter "Gbur Decl."), Ex. 2. Therefore, this Court must determine whether 8 U.S.C. § 1231(a)(5) may be retroactively applied to his case.
The courts of appeal that have examined this issue have all applied the retroactivity analysis found in Landgraf v. USI Film Products. Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994).10 The Landgraf test has two parts. First, it asks whether Congressional intent as to the possible retroactive application of the law was clear. Id. at 280, 114 S.Ct. 1483. If Congress clearly indicated that the statute may be retroactively applied, the test is satisfied, and the statute may be applied retroactively. On the other hand, if Congress made clear its intent that the statute not be retroactively applied, the Landgraf test is likewise satisfied, and the statute may not be applied retroactively.11
If Congressional intent as to the possible retroactive application of the statute is unclear, the court...
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