that reflects the analyses of the narcotic substance taken from Chukwurah indicates that, on September 17, 1989, the day following petitioner's arrest, the "approximate gross quantity" of the substance seized was 777.1 grams. The same form indicates that the laboratory analysis performed on October 5, 1989, revealed that the gross weight of the seized substance was 809.5 grams.
Petitioner's concern about the discrepancy in gross weight is misplaced, however, since gross weight does not affect the calculation of the offense level. Under the sentencing guidelines, the offense level is calculated with reference to the net weight of the narcotics involved, i.e., net of the packaging. See Guidelines Manual, 2D1.1 (c)(8), comment (*) (November 1992) ("Unless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance."). Furthermore, the discrepancy in itself is not suspicious; the first measurement purports to be the approximate gross weight of the seized materials as measured in the field, whereas the second measurement is a more precise measurement conducted under laboratory conditions using sophisticated equipment. Cf. Complaint, CR 89-1236 (misc.), dated Sept. 18, 1989, at P 3 ("A field test conducted on the substance proved positive for the presence of heroin with a gross weight of approximately 777.1 grams.") [Gov't Exh. 1]; and DEA Form 7 (Chukwurah, R.) at Line 13 ("Approx. Gross Quantity"); with DEA Form 7, at Line 25 ("Gross Wt.").
In any event, the record reveals that defense counsel diligently pressed the issue of the appropriate weight to be used in calculating the offense level; defense counsel raised this issue on three different occasions: (1) in a letter dated December 26, 1989, defense counsel objected to the pre-sentence investigation report, arguing that the net weight should be less than 400 grams [Gov't Exh. 7]; (2) in a letter dated January 10, 1990, defense counsel articulated the objection that there is a discrepancy in the calculation of the gross weight [Gov't Exh. 9]; and (3) defense counsel again raised the concern regarding the weight during sentencing [Gov't Exh. 13]. This Court specifically addressed the issue of the weight to be used in the sentence calculation during sentencing; after receiving testimony from petitioner and hearing oral argument from both sides, the Court found that the probation department used the appropriate net weight (i.e., net of packaging, but not net of other substances beside heroin) as the basis for determining the offense level. May 14, 1990 Tr. at 19 [Gov't Exh. 13].
Finally, petitioner argues that defense counsel misleadingly assured petitioner that his sentence would be less than 41 months. This contention does not suffice as a basis for an ineffective assistance claim as a matter of law. United States v. Sweeney, 878 F.2d 68, 70 (2d Cir. 1989) ("a defendant [is] not entitled to withdraw a guilty plea simply because his attorney erroneously predicted his sentence"); see, e.g., Arbelaez-Osorio v. United States, 788 F. Supp. 718, 720 (E.D.N.Y. 1992) (citing Sweeney to support position that an ineffective assistance claim based on counsel's erroneous prediction of sentence is insufficient as a matter of law). Furthermore, Chukwurah acknowledged during the plea allocution that no promises had been made to persuade him to plead guilty, that he understood that he could not withdraw his plea of guilty so long as the sentence is not greater than the maximum penalty of twenty years imprisonment, and that no one has promised that the Court will impose a particular sentence. Oct. Tr. 9-12.
Chukwurah also argues that the sentence imposed on him violates the constitutional principles of double jeopardy. Chukwurah apparently has two bases for this argument. First, he appears to argue that the current INS detainment constitutes an unconstitutional second punishment for his conviction. Second, he argues that, if he is deported to Nigeria, he faces a five-year sentence there solely because of his conviction in the United States. Both arguments, as a matter of law, do not make out a double jeopardy claim.
Generally, the constitutional prohibition of double jeopardy is offended where a criminal defendant is subjected to a second prosecution for the same offense after conviction or acquittal and where a criminal defendant is subjected to multiple punishments for the same offense. See generally Illinois v. Vitale, 447 U.S. 410, 415, 65 L. Ed. 2d 228, 100 S. Ct. 2260(1980). The current detention of petitioner by the INS does not amount to punishment and hence does not implicate the constitutional protection against double jeopardy.
Chukwurah's current detention is part of the deportation proceeding. Pursuant to 8 U.S.C. § 1252(a), the INS may detain aliens charged to be deportable pending the adjudication of the charges. Section 1252(a) provides in part:
The Attorney General shall take into custody any alien convicted of an aggravated felony upon release of the alien (regardless of whether or not such release is on parole, supervised release, or probation, and regardless of the possibility of rearrest or further confinement in respect of the same offense).
8 U.S.C. § 1252(a)(2)(A). A deportation proceeding is not a criminal prosecution but is a civil action collateral to any criminal proceeding. See United States v. United States Currency in the Amount of $ 228,536, 895 F.2d 908, 915 (2d Cir.), cert. denied, 495 U.S. 958 (1990); United States v. Hernandez, 588 F.2d 346, 351-52 (2d Cir. 1978); United States v. Kandiel, 964 F.2d 794, 796 (8th Cir. 1992); see also Del Rosario, 902 F.2d at 59; Santos, 880 F.2d at 943-45. Hence, deportation proceedings do not constitute a "second prosecution."
Further, the consequence of deportation and its attendant hardship on the deported alien, including interim incarceration, are not forms of punishment. See Linnas v. INS, 790 F.2d 1024, 1030 (2d Cir. 1986), cert. denied, 479 U.S. 995, 93 L. Ed. 2d 600, 107 S. Ct. 600(1986), reh'g denied, 479 U.S. 1070, 93 L. Ed. 2d 1012, 107 S. Ct. 964(1987); see generally Mahler v. Eby, 264 U.S. 32, 39, 68 L. Ed. 549, 44 S. Ct. 283(1924). Rather, the power to expel an alien convicted of crimes in this country is a fundamental sovereign attribute exercised by the government's political departments; decisions to expel an alien reflect concerns about national interests, not a desire to punish the expelled alien. Fiallo v. Bell, 430 U.S. 787, 794-96, 52 L. Ed. 2d 50, 97 S. Ct. 1473(1977).
Thus, notwithstanding the fact that the deportation proceeding and petitioner's current detention stem from his conviction, he is not being subject to multiple penalties for the same offense. Hence neither the deportation proceeding nor the attendant incarceration of petitioner offend double jeopardy principles.
Likewise, the fact that Chukwurah may face a term of imprisonment in Nigeria based on his conviction here does not render his conviction or sentence of imprisonment constitutionally infirm. It is well established that the "double jeopardy clause's protection only applies in instances where the same sovereign is responsible for the successive prosecutions." United States v. Giovanelli, 945 F.2d 479, 491 (2d Cir. 1991); see also United States v. Riviere, 924 F.2d 1289, 1302 (3d Cir. 1991). Under the dual sovereign doctrine, i.e., the principle that two separate sovereigns may both prosecute a person for the same offense, the United States and Nigeria "may bring successive prosecutions for the same offense" against petitioner without offending double jeopardy Principles. Vasquez v. United States, 1989 WL 38311 (E.D.N.Y. 1989); see also United States v. Richardson, 580 F.2d 946, 947 (9th Cir. 1978), cert. denied, 439 U.S. 1068, 59 L. Ed. 2d 33, 99 S. Ct. 835(1979); Matter of Extradition of Montiel Garcia, 802 F. Supp. 773, 776 (E.D.N.Y. 1992); see generally United States v. Wheeler, 435 U.S. 313, 317-18, 55 L. Ed. 2d 303, 98 S. Ct. 1079(1978); Bartkus v. Illinois, 359 U.S. 121, 139, 3 L. Ed. 2d 684, 79 S. Ct. 676 (1959).
Finally, Chukwurah belatedly attacks his sentence, arguing that the government failed to disclose evidence favorable to the defense. As the basis for this claim, he refers to the government's contention made prior to sentencing that Chukwurah had been arrested in Texas in 1983 and placed on probation for six months for assaulting a police officer. [See Gov't Exh. 10; letter from AUSA, dated April 9, 1990.] Chukwurah contends that the arrest in 1983 was for damaging property and not for assault and that the Assistant U.S. Attorney was aware of this when he advised the Court of Chukwurah's prior criminal record. This allegation is irrelevant, however, because the government's representation did not influence this Court in sentencing Chukwurah. This Court found that Chukwurah had no prior criminal record and accordingly his sentence was computed with a Criminal History Category of I under the sentencing guidelines. Moreover, since the Court sentenced Chukwurah to the lowest possible sentence under the guideline range in this case, there is no danger that the government's representation worked more subtly on the mind.
Accordingly, Chukwurah's section 2255 petition is denied. Since the section 2255 petition is denied, the Court need not address petitioner's request for preliminary relief in the form of a stay of the deportation proceeding.
Petitioner also raises a claim about his current confinement by the INS which is not based on the claim that his conviction in this Court is invalid. Petitioner suggests that he is eligible for conditional parole under 8 U.S.C. § 1252(a) and that it is an abuse of discretion not to grant petitioner this status. This argument however, must be presented to the district court that has jurisdiction over petitioner's custodian, specifically, the warden of the INS detention facility located in Aurora, Colorado. 28 U.S.C. § 2241; see United States v. Huss, 520 F.2d 598, 604 (2d Cir. 1975) (quoting Freeman v. United States, 103 U.S. App. D.C. 15, 254 F.2d 352, 353-54 (1958)); Billiteri v. United States Bd. of Parole, 541 F.2d 938, 948 (2d Cir. 1976); see also Braden v. 30th Judicial Cir. Ct., 410 U.S. 484, 494, 93 S. Ct. 1123, 35 L. Ed. 2d 443 (1973); see, e.g., Peon v. Thornburgh, 765 F. Supp. 155, 156 (S.D.N.Y. 1991); Ledesma-Valdes v. Sava, 604 F. Supp. 675, 679 (S.D.N.Y. 1985). Therefore, this Court does not have jurisdiction to reach the merits of this claim. In the interests of justice and to avoid unnecessary delay, this claim should be transferred to the United States District Court for the District of Colorado pursuant to 28 U.S.C. § 1406(a), rather than dismissed. See Peon, 765 F. Supp. at 156.
Accordingly, the Clerk is directed to enter judgment dismissing the petition for mandamus in CV-92-5853 and to transfer the remaining habeas claim under 28 U.S.C. § 2241 in CV-92-5276 to the United States District Court for the District of Colorado.
The Clerk is directed to mail a copy of the within to all parties.
Dated : Brooklyn, New York
January 4, 1993
Charles P. Sifton
United States District Judge
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