The opinion of the court was delivered by: CHARLES P. SIFTON
Petitioner, Robert Chukwurah, appearing pro se, moves pursuant to 28 U.S.C. § 2255 to set aside his conviction for heroin importation. Additionally, petitioner, who is a resident alien currently being detained by the Immigration and Naturalization Service ("INS"), requests this Court to stay the deportation proceeding against him pending the resolution of his section 2255 petition and seeks an order directing the district director of the INS to release petitioner on special parole. For the following reasons, the section 2255 petition is denied, the application for a preliminary stay of the deportation proceeding is denied, and the remaining habeas corpus claim is transferred pursuant to 28 U.S.C. § 1406(a).
Chukwurah bases his section 2255 petition on three grounds. He argues first that his plea of guilty was involuntary because, at the time of the plea, he was unaware of the possibility that his conviction may lead to deportation. Second, he argues that he was denied effective assistance of counsel. Third, he argues that his conviction violates the principles of double jeopardy embodied in the Fifth Amendment to the Constitution principally because he faces the possibility of being imprisoned for as long as five years by the Nigerian Government as a result of his conviction in the United States. Petitioner also challenges his sentence on the ground that the government withheld evidence favorable to petitioner.
Chukwurah was born in and is a citizen of Nigeria. He traveled to the United States in November 1980 as a non-immigrant business visitor, and on August 28, 1982, he was accorded lawful permanent residence status.
On September 16, 1989, Chukwurah was arrested after arriving at John F. Kennedy International Airport on a Nigeria Airways flight. A search revealed that Chukwurah had concealed 96 packages of heroin in his abdominal area. On October 26, 1989, petitioner pled guilty before this Court to the offense of importation of heroin in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(3) and 18 U.S.C. § 3551 and was sentenced on May 14, 1990, to 41 months imprisonment.
Upon completion of the term of imprisonment, the INS commenced deportation proceedings against Chukwurah on October 23, 1992. Chukwurah is charged with being deportable as an alien convicted of a narcotics-related offense and as an alien convicted of an aggravated felony. See 8 U.S.C. § 1251(a)(2)(B)(i), (A)(iii).
The INS is currently detaining petitioner pursuant to 8 U.S.C. § 1252(a). An immigration judge has set bond at $ 10,000. Chukwurah has applied for a waiver of deportation pursuant to 8 U.S.C. § 1182(c), which allows the waiver of deportation charges against a lawful permanent resident who has maintained a lawful unrelinquished domicile in the United States for seven years. A deportation hearing on this application is scheduled to occur on January 6, 1993.
Although Chukwurah's term of imprisonment expired when he was released from prison, he is currently serving a three-year term of supervised release, unless and until he is deported. Thus, Chukwurah is still "in custody" within the meaning of 28 U.S.C. § 2255 and may therefore collaterally attack the validity of his conviction. See Jones v. Cunningham, 371 U.S. 236, 9 L. Ed. 2d 285, 83 S. Ct. 373(1963); United States ex rel. B. v. Shelly, 430 F.2d 215, 219 n.3 (2d Cir. 1970) (person on probation is in custody for purposes of habeas petition); see, e.g., Donat v. United States, 1991 WL 81946 (E.D.N.Y. 1991) (Glasser, J.) (reaching merits of 2255 claim when petitioner was serving term of supervised release).
Petitioner did not raise the arguments he currently raises at any time during the criminal proceeding, nor did he appeal his sentence. Generally, a petitioner must show cause for failing to raise the alleged error in the criminal case and show the actual prejudice that resulted from the error. United States v. Frady, 456 U.S. 152, 167-68, 71 L. Ed. 2d 816, 102 S. Ct. 1584(1982); Campino v. United States, 968 F.2d 187, 190-91 (2d Cir. 1992) (applying the cause and prejudice standard in a section 2255 action for constitutional error).
Chukwurah has not explicitly addressed this procedural issue. Host of Chukwurah's claims revolve around the possible deportation consequences of his conviction, and it may be that the cause of his failure to raise these claims during the criminal proceeding was his alleged lack of awareness of the possible deportation. However, since, as discussed below, Chukwurah cannot show actual prejudice, this Court does not reach the issue of whether Chukwurah has adequately shown cause.
Chukwurah's argument that his plea was involuntary and is constitutionally infirm is contradicted by the record of his criminal proceeding. Chukwurah argues that he was compelled to sign the plea agreement because of the threat of a twenty-year sentence and because he was unaware of the possible deportation consequence of the conviction. Chukwurah claims that he would not have plead guilty if he had known that he could be deported as a result of the conviction.
However, during the plea allocution, Chukwurah acknowledged that he understood the consequences of pleading guilty:
Q. . . . First of all, do you understand what you're accused of having done?
Q. Have you been told what the maximum penalty is ...