United States v. Esperdy, 275

• Decision Date: 18 May 1959
• Docket Number: Docket 25308.,No. 275,275
• Parties: UNITED STATES of America ex rel. George PIPERKOFF, Relator-Appellant, v. P. A. ESPERDY, District Director, Immigration and Naturalization Service, District of New York, United States Department of Justice, Respondent-Appellee,
• Court: U.S. Court of Appeals — Second Circuit

267 F.2d 72 (1959)

UNITED STATES of America ex rel. George PIPERKOFF, Relator-Appellant, v. P. A. ESPERDY, District Director, Immigration and Naturalization Service, District of New York, United States Department of Justice, Respondent-Appellee,

No. 275, Docket 25308.

United States Court of Appeals Second Circuit.

Argued April 22, 1959.

Decided May 18, 1959.

Edward L. Dubroff, Brooklyn, N. Y. (Jacob W. Rozinsky, New York City, on the brief), for relator-appellant.

Roy Babitt, Sp. Asst. U. S. Atty., Southern Dist. of New York, New York City (Arthur H. Christy, U. S. Atty., New York City, on the brief), for respondent-appellee.

Before LUMBARD and MOORE, Circuit Judges, and ANDERSON, District Judge.

LUMBARD, Circuit Judge.

This is an appeal from a denial of the writ of habeas corpus by the District Court for the Southern District of New York, without a hearing. The relator is an alien who, though he has concededly been convicted of two crimes involving moral turpitude within the meaning of 8 U.S.C.A. § 1251(a) (4) and thereby rendered himself deportable, seeks to prevent his deportation on the ground that the sentencing court issued the "recommendation" against deportation which is authorized by § 1251(b)¹ and that it thereby rendered the deportation provisions of § 1251(a) inoperative. The sole issue presented for decision is whether the recommendation which the sentencing court entered was made "at the time of first imposing judgment or passing sentence, or within thirty days thereafter" as required by § 1251(b). We hold that it was not, and consequently we affirm the decision of the district court.

Piperkoff was born in 1900 in Sofia, Bulgaria, and was last a national of Bulgaria. He has continuously resided in the United States since his lawful entry in 1921. In 1935 he was sentenced by the Kings County Court in New York to one year upon his plea of guilty to a charge of attempted burglary. In 1938 after trial in the same court he was sentenced as a second felony offender to an indeterminate term of from 40 to 60 years for the crime of robbery in the first degree. In 1939 he was ordered deported under § 19 of the Immigration Act of 1917, 39 Stat. 889 (1917), but deportation was deferred until his release from prison.

In 1954 the relator brought a coram nobis proceeding in the sentencing court as a result of which the 1935 conviction was vacated on the ground of defects arising from lack of counsel at several stages in the 1935 proceedings. On rearraignment Piperkoff pleaded guilty to the misdemeanor of unlawful entry, sentence was suspended, and the court recommended that he not be subject to deportation. It is conceded that this recommendation was ineffective because the Immigration Service was not given the requisite statutory notice under § 1251(b). At the same proceeding Piperkoff was resentenced on the 1938 felony as a first felony offender. A similarly defective recommendation was entered as to this sentence.

Thereafter on relator's motion the deportation proceedings were reopened in 1955, the charge was altered to conviction after entry of two crimes involving moral turpitude, § 1251(a) (4), and the recommendations against deportation were disallowed for failure to give statutory notice.

Finally in 1957 the events which gave rise to these proceedings occurred in the sentencing court. On relator's motion the court again held what it labelled as proceedings "in the nature of coram nobis," it vacated the judgments it had entered in 1954, and gave the statutory notice to the Immigration Service, the Attorney General and others which is required to give effect to a recommendation against deportation. § 1251(b). The Immigration Service and the Attorney General neither appeared in nor objected to the proceedings subsequently held. With the consent of the District Attorney of Kings County the court resentenced Piperkoff to the same sentences it had previously vacated on the 1954 and 1938 convictions, and recommended against deportation on both. The Board of Immigration Appeals nevertheless denied Piperkoff's motion for reconsideration of its prior decision that the recommendation was void, giving as its ground that for purposes of § 1251 (b) judgment was "first imposed" in 1954, not in 1957, so that the 1957 notice was untimely. On June 18, 1958 Piperkoff was arrested by the Immigration and Naturalization Service and immediately commenced these proceedings.

We have previously held that under § 19 of the Immigration Act of 1917, 39 Stat. 889-890 (1917), the predecessor of § 1251(b), the power of the sentencing court to make its recommendation was strictly circumscribed. We found that an order entered one and one-half years after sentence purporting to amend the judgment nunc pro tunc so as to add the requisite recommendation was ineffective to prevent deportation. United States ex rel. Klonis v. Davis, 2 Cir., 1926, 13 F.2d 630. The present statute does not alter but reinforces that view, since it adds the word "first" to the phrase "at the time of first imposing judgment * * *"² Relator argues that this case is distinguishable because the sentencing court here did not purport to amend its earlier order nunc pro tunc, but rather purported to vacate the judgment in its entirety by coram nobis, and to impose a...