United States District Court, Southern District of New York
August 13, 2003
TOSIN ADEGBUJI, PETITIONER,
UNITED STATES, RESPONDENT
The opinion of the court was delivered by: Robert Patterson, Senior District Judge
OPINION AND ORDER
Petitioner Tosin Adegbuji ("Adegbuji") filed this pro se petition pursuant to 28 U.S.C. § 2255 claiming ineffective assistance of counsel during his 1993 and 2002 plea bargains and sentencings. The Government moved to dismiss the petition. For the following reasons, Adegbuji's petition is denied for lack of jurisdiction.
Adegbuji is a Nigerian native who re-entered the United States in January 1993. (Pre-Sentence Report at 1, 9.)*fn1 On July 8, 1993, Adegbuji was arrested for using stolen credit cards. (Id. at 1.) Information 93 Cr 659 was filed in the Southern District of New York on August 5, 1993, charging Adegbuji with credit card fraud in violation of 18 U.S.C. § 1029. (Id. at 2.)
On August 13, 1993, Adegbuji pled guilty to credit card fraud in violation of 18 U.S.C. § 1029, pursuant to a plea agreement with the Government. (Id.) On November 1, 1993, the Honorable Pierre N. Leval of the Southern District of New York sentenced Adegbuji to a term of 13 months imprisonment, 3 years supervised release and a $50 special assessment. See U.S. v. [ Page 2]
Mafanya, 24 F.3d 412, 414 (2d Cir. 1994). The Court applied a 2-level increase in Adegbuji's offense for obstruction of justice; Adegbuji gave an alias ("Mafanya") at the time of his arrest and failed to disclose prior convictions for credit card fraud. Id. The Court of Appeals denied Adegbuji's appeal to remove the 2-level increase for obstruction of justice. Id. at 416.
On June 16, 1994, Adegbuji began to serve his three years of supervised release. (Government's Motion to Dismiss at 3.) In November 1994, Adegbuji failed to file a monthly written report and also failed to appear for a meeting with his probation officer. (Id.) On November 30, 1994, probation received a letter from Adegbuji, which stated that he had left the United States for Nigeria on November 13, 1994, after receiving news that his mother had been hospitalized. (Id.) Adegbuji claimed that he had had to leave immediately and could not contact probation because it was a holiday weekend. (Id.)
Probation filed a petition on June 7, 1995, charging Adegbuji with three specifications of violation of supervised release. (Id.) A warrant was issued for his arrest two days later. (Id.) On May 2, 2002, Adegbuji was arrested at Newark Airport. (Id.)
On May 24, 2002, Adegbuji appeared with counsel and informed the Court that the parties had agreed that Adegbuji would admit to the first specification of his violation of the terms of his supervised release with the understanding that if Adegbuji consented to comply with the Immigration and Naturalization Services ("INS"), the Government would recommend that Adegbuji be sentenced to time served. (Sentencing Transcript at 2-3.)*fn2 Counsel also advised that Adegbuji was subject to an INS detainer. (Id. at 3.) Thereafter, Adegbuji admitted to the first [ Page 3]
specification that he "failed to report to the probation department on November 15, 1994, December 20, 1994, January 17, 1995, February 21, 1995, March 21, 1995, April 18, 1995, May 15, 1995 and thereafter." (Id. at 5.) The Court then asked if Adegbuji agreed "to comply with . . . any Immigration and Naturalization actions taken by the United States in connection with [his] continued presence in this country," to which Adegbuji stated, "[y]es, your honor." (Id. at 5.) The Court then sentenced Adegbuji to time served. (Id. at 6.) On the same day, Adegbuji was released into ENS custody (Gov. Mot. to Dismiss at 5), where Adegbuji currently remains incarcerated, awaiting deportation. (Petitioner's Memorandum at 2.)
On April 16, 2003, Adegbuji filed the instant petition pursuant to 18 U.S.C. § 2255 claiming: 1) that he received ineffective assistance of counsel in connection with his 1993 conviction for credit card fraud due to the failure of counsel to inform Adegbuji that if he pled guilty to the crime that he could be deported nine or ten years after the conviction; and 2) that he received ineffective assistance of counsel in connection with his 2002 admission to a violation of supervised release because counsel had misadvised him that his prior conviction was an aggravated felony under immigration law when it was not. (Id. at 3-4.) Adegbuji contends that if he knew that his 1993 and 2002 plea agreements could lead to deportation, he would have proceeded to trial. (Id.) He requests that "this Court vacate or set aside the sentence for the underlying offense of November 1993 and the administrative violation of probation [sic] given on May 24, 2002 . . . [or] permit the Petitioner to proceed to a jury trial to present new evidence." (Id. at 5.) [ Page 4]
The Court lacks jurisdiction to entertain the petition because Adegbuji was not in custody on a sentence imposed by the Court (or by Judge Leval) at the time his petition was filed. Title 28 U.S.C. § 2255 states in pertinent part:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to
be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of
the United States . . . may move the court which
imposed the sentence to vacate, set aside or correct
Id. "In order to invoke habeas corpus review by a federal court, the petitioner must satisfy the jurisdictionl `in custody' requirement of 28 U.S.C. § 2255." Scanio v. U.S., 37 F.3d 858
, 860 (2d Cir. 1994) (citing United States v. Brilliant, 274 F.2d 618
, 620 (2d Cir. 1960), cert. denied 363 U.S. 806(1960)).
Physical confinement is not necessary to meet the "in custody" requirement for habeas relief pursuant to 28 U.S.C. § 2255. See e.g., Dixon v. Miller, 293 F.3d 74, 78 (2d Cir. 2002). Persons on parole may seek habeas review because parole imposes restrictions that "significantly restrain [a] petitioner's liberty to do those things which in this country free men are entitled to do." Jones v. Cunningham, 371 U.S. 236, 243 (1963). Under parole, a parolee's travel rights are restricted to certain areas; among other things, he can be rearrested at any time; he is subject to the unannounced invasions of his parole officer; he cannot associate with known criminals; and he must exhibit good behavior. Id. at 242. Also defendants "released on bail or on [their] own recognizance pending trial or pending appeal" and who have "exhausted all available state court opportunities to have [their] conviction[s] set aside" are entitled to seek habeas relief in federal courts. Hensley v. Muncipal Court, 411 U.S. 345, 353 (1972). [ Page 5]
In the instant case, however, Adegbuji agreed in open court "to comply with . . . any [INS] actions taken by the United States in connection with [his] continued presence in this country," a term of the plea agreement, pursuant to which he avoided serving time for violating the terms of his supervised release for almost eight years. (Sent. Tr. at 5.) The Court on May 24, 2002 did not impose the types of restrictions on Adegbuji that are imposed on individuals on parole or released on their own recognizance. Nor did the Court direct or require the INS to incarcerate Adegbuji.
If Adegbuji fails to live up to his agreement in open court to comply with INS "actions taken by the United States in connection with [his] continued presence in this country," (Id.) he faces penalties more akin to those faced by individuals ordered to pay fines or restitution. Federal courts have held that neither fines nor an order to pay restitution subjects a petitioner to custody for the purposes of § 2255. See e.g., U.S. v. Michaud, 901 F.2d 5, 7 (1st Cir. 1990) ("[a] monetary fine is not a sufficient restraint on liberty to meet the `in custody' requirement for § 2255 . . . [n]or does potential future incarceration for failure to pay such a fine provide the requisite subject matter jurisdiction"); Goldman v. U.S., 2000 WL 1610782, *2 (N.D.N.Y. Sept. 29, 2000); Barnickel v. U.S., 113 F.3d 704, 706 (7th Cir. 1997); Kaminski v. U.S., 2003 WL 21801440, *2 (2d Cir. Aug. 6, 2003) ("we conclude that the restitution order . . . does not bring about custody"); Dremann v. Francis, 828 F.2d 6, 7 (9th Cir. 1987). Such courts have reasoned that incarceration for failure to pay "fine only" sentences does not meet the "in custody" requirement for habeas review because a defendant's incarceration did "not depend on a number of factors over which [the defendant] has no control." Spring v. Caldwell, 692 F.2d 994, 998 (5th Cir. 1982) (citing Hensley, 411 U.S. at 351-52). [ Page 6]
While Adegbuji's potential failure to comply with INS actions raises the possibility of contempt of court and incarceration, Adegbuji has control over his own fate. There are no additional factors that subject him to incarceration. He may choose to comply or be in contempt of court and face possible incarceration for that contempt. But that will be due to his own actions, not because of the terms of Judge Leval's sentence or this Court's action for his violations of the terms of supervised release.
Adegbuji's current INS incarceration is a collateral consequence of his convictions for the purposes of § 2255. See e.g., Kandiel v. U.S., 964 F.2d 794, 796 (8th Cir. 1992) ("[b]ecause Kandiel's sentence was fully expired by the time he filed his section 2255 motion and the current deportation proceedings against him are merely a collateral consequence of his conviction, he is not `in custody' for the purposes of section 2255"); Cuevas v. New York, 2002 WL 206985, *2 (S.D.N.Y. Fed. 11, 2002) ("[a] habeas petitioner who has completed his sentence and was the subject of an INS deportation order cannot attack his underlying state court criminal conviction in a federal habeas corpus proceeding because he was no longer in custody with respect to the expired state conviction"). The Court's action on May 24, 2002 did not place Adegbuji "in custody" for the purposes of § 2255. Adegbuji's petition is dismissed as jurisdictionally barred. [ Page 7]
For the foregoing reasons, the petition is denied for lack of jurisdiction.
IT IS SO ORDERED.