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HERCULES v. MCELROY

United States District Court, Southern District of New York


January 13, 2003

LINFORD HERCULES, PETITIONER,
v.
EDWARD J. MCELROY, RESPONDENT.

The opinion of the court was delivered by: John S. Martin, Jr., District Judge

OPINION & ORDER

Petitioner, Linford Hercules, a native citizen of Guyana, was convicted in New York State Supreme Court of rape in the first degree. Based on its determination that this conviction was for an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(A) (2000), the Immigration & Naturalization Service has ordered that he be removed from this country pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) (2000).

Petitioner contends that the order of deportation is not valid because his state rape conviction is not an aggravated felony. However, rape is specifically listed as one of the crimes within the definition of aggravated felony in 8 U.S.C. § 1101(a)(43)(A) (2000). Petitioner's contention that this definition does not include rape under state law flies in the face of the statement in that section that the term aggravated felony "applies to an offense described in this paragraph whether in violation of Federal or State law. . . ." 8 U.S.C. § 1101(a) (2000). There is no merit to Petitioner's contention that rape is a type of esoteric crime that would differ under state and federal law.

Petitioner also claims that he was not advised of his rights under the Vienna Convention on Consular Relations to consult with a consular official from his country. See Vienna Convention on Consular Relations, April 24, 1963, art. 36, para. 1, 21 U.S.T 77, 596 U.N.T.S. 261. However, the Second Circuit has ruled that, absent a showing of prejudice, which Petitioner has not made, the failure to advise an alien of his rights under the Vienna Convention is not a basis for invalidating an order of removal. Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1993), cert. denied, 513 U.S. 1014, 115 S.Ct. 572 (1994). Here, Petitioner has not demonstrated any prejudice in the deportation proceedings that resulted from the failure to advise him of his rights under the Convention. While Petitioner argues that a consular official might have assisted him in obtaining an attorney, given the clear grounds for Petitioner's deportation, there is no reason to believe that, had Petitioner been provided counsel, the result of the proceedings would have been any different. Similarly, absent a showing of prejudice, a failure to advise a defendant of his rights under the Vienna Convention a ground for setting aside his conviction in a habeas corpus proceeding. United States v. Kevin, No. 97 Cr. 763, 1999 WL 194749, *3-4 (S.D.N.Y. Apr. 7, 1999).

Since Petitioner is to be deported because of his prior conviction for rage, the fact that he owns property in this country is not a ground for denying deportation.

For the foregoing reasons, the petition is dismissed. In addition, pursuant to 28 U.S.C. § 1915(a) (2000), the Court certifies that an appeal from this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 920-21 (1962).

20030113

© 1992-2003 VersusLaw Inc.



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