Prince v. Mukasey, 3:08-CV-1876.
| Court | United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania |
| Writing for the Court | Richard P. Conaboy |
| Citation | 593 F.Supp.2d 727 |
| Parties | Sean Anthony PRINCE, Petitioner, v. Attorney General Michael MUKASEY, et al., Respondents. |
| Docket Number | No. 3:08-CV-1876.,3:08-CV-1876. |
| Decision Date | 11 December 2008 |
v.
Attorney General Michael MUKASEY, et al., Respondents.
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Sean Anthony Prince, Lords Valley, PA, pro se.
Dennis Pfannenschmidt, U.S. Attorney's Office, Harrisburg, PA, Timothy Judge, U.S. Attorney's Office, Scranton, PA, for Respondents.
RICHARD P. CONABOY, District Judge.
Here we consider the Habeas Corpus Petition Pursuant to 28 U.S.C. § 2241 (Doc. 1) filed by Petitioner Sean Anthony Prince on October 10, 2008. Petitioner is a pre-final order of removal detainee in the custody of the Department of Homeland Security ("DHS") at the Pike County Correctional Facility in Pike County, Pennsylvania. (Doc. 1 at 1; Doc. 6 at 2.) With this Petition, Petitioner seeks release from custody based on the length of his incarceration (over fourteen months at the time of filing), claiming the deprivation of liberty caused by his indefinite detention is unconstitutional. (Doc. 4 at 17.)
Respondents filed their response to the Petition (Doc. 6) on November 19, 2008, and Petitioner filed a reply brief (Doc. 7) on November 26, 2008. Therefore this matter is fully briefed and ripe for disposition. For the reasons discussed below, we deny the Petition.
Petitioner is a forty-two year old native of Guyana who entered the United States as a legal permanent resident on May 21, 1983. Petitioner states he was in criminal custody in West Chester County Correctional Facility in Valhalla, New York, before being transferred to the custody of the Department of Homeland Security ("DHS") on July 11, 2007.
On July 11, 2007, the DHS served Petitioner with a Notice to Appear indicating that he was deportable under section 237(a)(2)(A)(ii) of the Immigration and Nationality Act ("INA" "Act").2 This section of the Act provides that "[a]ny alien who is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct ... is deportable." 8 U.S.C. § 1227(a)(2)(A)(ii). In support of this charge, the DHS cited two
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New York State Penal Law convictions: 1) a March 4, 2003, conviction for Assault with Intent to Cause Physical Injury in the Third Degree (section 120.00(1)); and 2) a July 9, 2002, conviction for Menacing in the Second Degree (section 120.14).
Also on July 11, 2007, the DHS issued a Notice of Custody Determination informing Petitioner that he would be detained and his detention was mandated by the INA.3 The notice further informed Petitioner that an immigration judge ("IJ") could not review the detention status.
Three supplemental charging documents were later filed. On August 31, 2007, the DHS issued a charging document adding a new basis for deportability and amending the bases previously identified: 1) deportability pursuant to Section 237(a)(2)(B)(i) of the INA is supported by Petitioner's conviction for a violation of New York State Penal Law on April 25, 1997,4 relating to a controlled substance not excepted by the provision (Criminal Possession of Controlled Substance in the Seventh Degree, section 220.03);5 2) pursuant to Section 237(a)(2)(A)(ii), the Assault with Intent to Cause Physical Injury in the Third Degree (section 120.00(1)) conviction of March 4, 2003, as identified in the original charging
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document, was changed to Attempted Assault in the Third Degree (with intent to cause physical injury)(section 110-120.00(1)); and 3) pursuant to Section 237(a)(2)(A)(ii), for the July 9, 2002, conviction for Menacing in the Second Degree the New York Penal Law section was changed from section 120.14 identified in the original charge to section 120.15.
The second supplemental charging document dated September 21, 2007, states that Petitioner's removal is further supported by his conviction on January 6, 2006, on two (2) counts of Terroristic Threats in violation of section 2C:12-3A of the New Jersey Crimes Code.6
The third supplemental charging document dated October 16, 2007, adds two (2) additional bases for Petitioner's removal: 1) Petitioner's April 2, 1985, California conviction for Petty Theft (California Penal Code § 488C); and 2) Petitioner's September 17, 1985, California conviction for False Identification to a Peace Officer (California Penal Code § 148.9).
The record also shows that Petitioner filed a motion to terminate proceedings which Immigration Judge Walter Durling denied on September 20, 2007. The basis of the motion was Petitioner's contention that his March 4, 2003, conviction for Attempted Assault in the Third Degree was not a crime of moral turpitude. The IJ's denial was based on his determination that moral turpitude attaches through malicious intent, not just to the infliction of injury. (See Doc. 6-2 at 11.)
The record further reveals that Petitioner filed an application regarding eligibility for cancellation of removal as a permanent resident which was denied by IJ Durling on March 7, 2008. (Doc. 6-2 at 18.) The IJ determined that Petitioner's accrual of the seven-year time necessary for lawful permanent residency was interrupted by his 1985 convictions. (Id. at 21.) Although the IJ found that Petitioner's 1985 California conviction for false identification to a police officer is not necessarily a crime of moral turpitude, he concluded that Petitioner's "accrual of lawful permanent residence stopped at the time when he committed his first [crime involving moral turpitude], in this case petty theft, and quite possibly providing false identification to a peace officer." (Id. (citing INA § 240A (d)(1))7.) The Immigration Judge further noted that Petitioner's April 12, 1997, conviction for drug possession appeared
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to make him ineligible for the relief sought. (Id.)
On October 2, 2008, IJ Durling issued an Interlocutory Ruling in which he allowed Petitioner the opportunity to establish that his 1985 misdemeanor conviction for false identification is not a crime involving moral turpitude in support of his request for discretionary relief pursuant to INA § 240A(a). (Doc. 6-2 at 22.) The IJ directed Petitioner to inform the court how he wishes to proceed in this matter at the next master calendar.8 (Id.)
On October 28, 2008, the Immigration Court issued a Notice of Hearing in Removal Proceedings. (Doc. 6-2 at 23.) The notice informs Petitioner that he is to appear for a hearing in the Immigration Court on January 15, 2009.9 (Id.)
Petitioner filed the instant action on October 10, 2008, pursuant to 28 U.S.C. § 2241. (Doc. 1.) Respondents filed their response (Doc. 6) on November 19, 2008, and Petitioner filed his reply (Doc. 7) on November 26, 2008. Thus, this matter is now fully briefed and ripe for disposition.
With this Petition, Petitioner does not challenge the Attorney General's power to detain him or the merits of his Notice to Appear. (Doc. 1 at 5.) Rather, Petitioner challenges only his continued detention as a pre-final order of removal detainee on the basis that his detention (fourteen months at the time of filing in October 2008) is "well outside of the normal Bright Time Line described in Demore v. Kim." (Doc. 4 at 1, 4.) In his reply brief Petitioner also challenges his continuing detention on equal protection grounds. (Doc. 7 at 11.)
Respondents maintain that Petitioner's detention is lawful in that he is subject to the mandatory detention provision of the INA relating to criminal aliens, section 236(c), and he has not established that he is subject to unreasonably prolonged detention. (Doc. 6 at 7.) Respondents' do not counter Petitioner's equal protection argument and would not be expected to do so because it was not raised in Petitioner's habeas petition (Doc. 1).
Regarding his equal protection claim, we conclude Petitioner has not properly presented the claim and he is not entitled to relief on this basis. Having considered the parties' arguments and the relevant statutory and case law regarding the propriety of Petitioner's detention, we conclude that given the circumstances of this case Petitioner is not entitled to habeas relief at this time.
A. Detention Pursuant to Section 236(c) of the INA
Section 236(c) of the INA, codified at 8 U.S.C. § 1226(c), provides that "[t]he Attorney General shall take into custody any alien who" is deportable from the United States because he has been convicted of a crime or crimes specified in the provision. See supra n. 3.
In Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), the United States Supreme Court considered this mandatory detention provision and held by a narrow majority that "Congress, justifiably concerned that deportable criminal
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aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers, may require that persons such as respondent may be detained for the brief period necessary for their removal proceedings." Demore, 538 U.S. at 513, 123 S.Ct. 1708. The petitioner was a citizen of South Korea who entered the country at age six and became a lawful permanent resident two years later. Id. Ten years later, in 1996, he was convicted of first-degree burglary and a year after that he was convicted of "petty theft with priors." Id. In light of these convictions, the Immigration and Naturalization Service ("INS") deemed Petitioner deportable and he was detained for a period of six months before his release following the district court's determination that section 1226(c)'s requirement of mandatory detention was unconstitutional. Id. at 513-14, 123 S.Ct. 1708.
After the Supreme Court decided Demore v. Kim, at least two circuit courts have concluded that the holding is limited to cases where the pre-final order detainee is not held for a prolonged duration. Tijani v. Willis, 430 F.3d 1241, 1252 (9th Cir. 2005); Ly v. Hansen, 351 F.3d 263, 271 (6th Cir.2003).
In Ly v....
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