The opinion of the court was delivered by: John Keenan, Senior District Judge
OPINION and ORDER [ Page 1]
In 1996 Jae Hyun Ahn ("Ahn") pled guilty to conspiracy to commit wire fraud, bank fraud and bribery, wire fraud and soliciting and accepting illegal payments. Ahn, a legal resident alien with a green card, was eventually sentenced to a year and one day of incarceration and three years of supervised release. Ahn has petitioned this Court to vacate his Judgment of Conviction on the basis of ineffective assistance of counsel.
Ahn is a former general manager of Korea First Bank ("KFB"). He is a native and citizen of Korea. On December 13, 1994, Ahn was was charged with two counts of violating 18 U.S.C. § 1005 by issuing unauthorized loan guarantees in the name of KFB. See 94 Cr. 982 (JFK). In November of 1995, the charges against Ahn were expanded as part of a twenty-count superceding indictment brought against him and his two co-defendants. See S1 94 Cr. 982 (JFK). Although Ahn ultimately entered into a cooperation and plea agreement with the United States Attorney's Office, his cooperation was far from prompt or extensive. It was not until the government was able to obtain records through foreign governments and brought the superceding indictment — some 20 months after Ahn's arrest — that Ahn realized the government was aware of certain bribe payments and agreed to cooperate. [ Page 2]
At the time of Ahn's sentencing, April 1997, the government submitted what can at best be described as a tepid 5K1.1 letter on the petitioner's behalf. The applicable sentencing range under the Federal Sentencing Guidelines was 27 to 33 months imprisonment. Based on the government's 5K1.1 letter and the request of Ahn's counsel, Michael Sporn, Esq. ("Sporn"), the Court decided to depart downwardly. Ahn was initially sentenced to three one year sentences that were to run concurrently to one another; followed by a three year term of supervised release. The day after sentence was imposed, Sporn wrote the Court requesting the sentence be increased by a day so as to allow his client the opportunity to be released early for good behavior. See Sporn 1tr. dated 4/23/97. The Court granted the request and amended the sentence to three concurrent terms of 366 days.
Ahn did not appeal either his conviction or his sentence. On May 1, 1998, Ahn's prison term concluded, and his term of supervised release ended on May 2, 2001. Because Ahn was sentenced to a term of at least one year of imprisonment, he was subject to removal from the United States under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). On September 1, 1998, after Ahn had been released from prison but was still subject to supervised release, an Immigration Judge denied Ahn's request for a waiver of inadmissability that would have allowed Ahn to avoid deportation. [ Page 3]
The decision of the Immigration Judge was subsequently upheld and Ahn stands to be deported.
On October 9, 2002, Ahn filed a habeas corpus petition pursuant to 28 U.S.C. § 2241 with the Court seeking to have his conviction vacated. Ahn claims that he received ineffective assistance of counsel in violation of his Sixth Amendment rights. See Notice of Motion. It is Ahn's contention that Sporn was ineffective at the time of sentencing because he did not advocate for a sentence of 364 days or less so as to avoid subjecting Ahn to automatic deportation. Ahn argues that Sporn compounded his mistake by seeking to have the sentence lengthened by a day, even though the additional day resulted in less actual prison time. See Adler ltr. dated 5/13/03.
The government opposes Ahn's petition. In its initial filing with the Court, the government based its opposition on the purely procedural point that Ahn is no longer "in custody" and therefore the Court lacks jurisdiction. See Gov't Mem. in Opp. dated 2/26/03. Counsel for Ahn, no longer Sporn, responded by claiming that the Court could exercise jurisdiction over this action pursuant to the doctrine of coram nobis. See Adler ltr. dated 4/22/03. On April 28, 2003, the Court entertained oral argument. At the conclusion of oral argument, the Court instructed the parties to brief the substantive claim of ineffective assistance of counsel. [ Page 4]
Ahn has served his prison term, his term of supervised release has expired and he is not in the custody of the Immigration and Naturalization Service ("INS"). Thus, Ahn cannot be deemed to be "in custody" and, therefore, Section 2241 does not provide the Court with jurisdiction over this petition. As the Supreme Court has made clear, "[t]he Federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are 'in custody in violation of the constitution or laws or treaties of the United States.'" Maleng v. Cook. 490 U.S. 488, 490 (1989) (emphasis in original) (quoting 28 U.S.C. § 2241). The Second Circuit has repeatedly stated that a person who is no longer subject to incarceration or supervised release is not within the definition of "in custody." See, e.g., Williams v. Edwards. 195 F.3d 95, 96 (2d Cir. 1994); Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994).
It is clear from the submissions and oral argument made on Ahn's behalf that the petitioner does not contest the fact that the Court lacks jurisdiction under 28 U.S.C. § 2241. Rather, it is petitioner's position that the Court can and should exercise jurisdiction under the ancient common-law doctrine of ...