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March 25, 2003


The opinion of the court was delivered by: Gary L. Sharpe, Magistrate Judge.


I. Introduction

Petitioner, pro se Jose Pietre commenced this action pursuant to 28 U.S.C. § 2241 on February 21, 2001. In his petition, Pietre challenges the decision of Immigration Judge Adam Opaciuch that ordered his deportation to the Domincan Republic (see Dkt. No. 1). In his petition, Pietre articulates three separate grounds in support of his claim that the order of removability should be vacated. Specifically, Pietre contends that: a) the Immigration Judge was biased against him; b) he was wrongfully denied his right to obtain counsel to defend himself against the charges brought against him by the Immigration and Naturalization Service ("INS"), and the Immigration Judge wrongfully allowed Pietre to represent himself at the deportation hearing, despite the fact that Pietre could not understand what was transpiring during that proceeding; and, c) the county court judge who accepted Pietre's guilty plea in conjunction with the criminal conviction upon which the Immigration Judge relied in ordering Pietre's removal from the United States, as well as the attorney who represented Pietre in that matter, improperly failed to advise him of the collateral consequences that might ensue if he plead guilty to the charge of third degree criminal possession of a controlled substance. See Pet. at Grounds One — Three.

Respondent Bintz seeks summary judgment relating to the third ground for relief, arguing alternatively that: (i) Pietre failed to first exhaust that claim in the state courts; and, (ii) a challenge to the underlying criminal conviction that resulted in the deportation order is barred by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996)*fn1 (Dkt. Nos. 8-11). Respondent INS seeks dismissal of the entire petition arguing in its motion to dismiss that Pietre was afforded a fair hearing before Judge Opaciuch (Dkt. No. 14).*fn2 Pietre has not opposed either motion. Therefore, this court will consider the documents submitted by the parties that address the allegations raised in Pietre's pleading, including the administrative record developed below, in arriving at its recommendation regarding Pietre's petition.

For the following reasons, this court recommends dismissal of the petition.

II. Background

Pietre is a native and citizen of the Dominican Republic and was admitted to the United States as a lawful permanent resident alien in November of 1992. See Certified Administrative Record Compiled in Pitre-Contreras v. Immigration and Naturalization Service, No. A43-846-067 (attached to Dkt. No. 14, Record, P. 65).

On September 19, 1997, Pietre was convicted of third degree attempted criminal sale of a controlled substance (Record, P. 65), and on November 19, 1997, he was sentenced to time served and five years probation (Record, P. 55).

On September 22, 1999, Pietre plead guilty to second degree criminal possession of a controlled substance. (See Statement of Material Facts Not in Dispute, 7/12/01, Dkt. No. 9, ¶ 2. Pietre was sentenced to a term of six years to life imprisonment.*fn3 Id.

On January 12, 2000, Pietre was advised that the INS would be seeking his removal from the United States at a hearing before an Immigration Judge due to his September 1997 controlled substance conviction (Record, PP. 62-65). On March 3, 2000, Immigration Judge Opaciuch presided over a removal hearing at the Ulster Correctional Facility. However, Judge Opaciuch adjourned that proceeding to afford Pietre additional time within which to retain an attorney concerning the charges brought against him by the INS. (Record, PP. 36-38). That hearing resumed on April 21, 2000, and Pietre waived his right to an attorney (Record, PP. 44-45). Judge Opaciuch took testimony from Pietre and after considering the impact of the September 1997 controlled substance conviction on Pietre's ability to remain in the United States, ordered him deported to the Dominican Republic (Record, PP. 48-52). Pietre appealed the removal decision to the Board of Immigration Appeals ("BIA"). However, the BIA found that the September 1997 conviction supported Judge Opaciuch's removal decision and denied his appeal (Record, PP. 2-5).

III. Discussion

A. Ground One

The first ground in Pietre's petition argues that the Immigration Judge was biased against him and that, as a result, he was deprived of his due process rights at that hearing. Pet. at Ground One.

Habeas relief is available to a petitioner claiming bias on the part of a judge where the petitioner establishes that the judge "had a `direct, personal, substantial, pecuniary interest in reaching [the particular] conclusion against him in his case.'" Martuzas v. Reynolds, 983 F. Supp. 87, 91 (N.D.N.Y. 1997) (Pooler, D.J.) (adopting Report-Recommendation of Magistrate Judge David R. Homer) (citing Tumey v. Ohio, 273 U.S. 510, 523 (1927)). Such relief is also available where the petitioner demonstrates that the judge exhibited "a deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555 (1994); In re Int'l Bus. Mach. Corp., 45 F.3d 641, 644 (2d Cir. 1995). In assessing the merits of such a claim, the habeas court is to examine the entire ...

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