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August 22, 2004.

JOSEPH E. McCOY, Superintendent, Cayuga Correctional Facility, and the IMMIGRATION AND NATURALIZATION SERVICE,[fn1] Respondents.

The opinion of the court was delivered by: HAROLD BAER, JR., District Judge[fn2] [fn2] Veronica Berger, a summer 2004 intern in my Chambers and a second-year law student at Cornell Law School, provided substantial assistance in the research and drafting of this opinion.

*fn1 As noted in Magistrate Judge Michael Dolinger's Report and Recommendation ("R & R"), the Immigration and Naturalization Service ("INS") is not the proper respondent to this petition. 28 U.S.C. § 2243 (providing that the "writ . . . shall be directed to the person having custody of the person detained"). Thus, the Court adopts Magistrate Judge Dolinger's recommendation and grants the Government's request that Edward J. McElroy, the District Director of INS's New York District, be substituted for the INS as respondent.


Pro se petitioner Michael P. Holmes ("Holmes") challenges his final order of removal from the United States and seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), Magistrate Judge Michael Dolinger issued a Report and Recommendation ("R & R") in which he recommended this Court deny the writ and dismiss Holmes' petition. Holmes filed written objections to the R & R within the statutory 10-day period. For the reasons set forth below, Holmes is not entitled to habeas relief and his petition is therefore denied.


  Holmes entered the United States in or around May 1991.*fn2 At that time, Holmes' three siblings and mother resided in the United States. The Immigration and Naturalization Service ("INS")*fn3 learned of his presence in the United States on January 16, 1993, at which time it instructed Holmes to leave the United States on his own accord prior to January 31, 1993. Holmes did not leave the United States, but rather remained in Rochester, New York, and married U.S. citizen Aronda McKnight ("McKnight"). McKnight and Holmes have a child together and McKnight also has four other children. Holmes accepts responsibility for McKnight's children and rears them as his own. On April 14, 1994, INS served Holmes with an administrative Order to Show Cause and charged him as deportable for unlawfully residing in the United States pursuant to Immigration and Nationality Act ("INA") § 241(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B), recodified at INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). Before deportation proceedings commenced, Holmes pled guilty in June of 1994 to a class C felony of third degree attempted sale of a controlled substance in Supreme Court, Monroe County and received both five weeks probation and five weeks of Saturday detention. Holmes appealed and the Fourth Department affirmed the conviction. People v. Holmes, 668 N.Y.S.2d 961 (4th Dep't 1997).

  On January 4, 1995, INS initiated a deportation hearing against Holmes in Buffalo, New York. For the purposes of the hearing, Holmes retained Bonnie Crogan-Mazur, an attorney from the International Institute of Buffalo ("IIB"). Immigration Judge ("IJ") Walter Durling temporarily stayed the proceedings upon learning that: (1) McKnight had filed an immigration visa petition on behalf of Holmes in an attempt to adjust his status; and (2) although Holmes' 1994 guilty plea might make him ineligible for adjustment, the appeal of his conviction was still pending. In the interim, IJ Durling directed that all future correspondence be sent to Crogan-Mazur. Subsequently, in November of 1994, Holmes' immigration visa was approved based on McKnight's petition. However, on December 24, 1996, Holmes was arrested in Clarkstown, New York, when police stopped a car — in which Holmes was a passenger — that contained a sawed-off shotgun and narcotics.*fn4 On May 20, 1997, Holmes pleaded guilty to second-degree criminal possession of a controlled substance, a class A felony.*fn5 The County Court, Rockland County sentenced Holmes to prison for eight years to life. On appeal, the Second Department affirmed the conviction, People v. Holmes, 702 N.Y.S.2d 840 (2d Dep't 2000), and his subsequent application for leave to appeal to the New York Court of Appeals was denied, 95 N.Y.2d 890 (2000) (TABLE), as was his motion for reconsideration, 95 N.Y.2d 964 (2000) (TABLE).

  On May 25, 2000, INS moved to reopen Holmes' previous deportation proceeding and also to transfer venue from the current location, Buffalo, to the Immigration Court located at the Downstate Correctional Facility in Fishkill. On June 2, 2000, IJ Phillip Montante of the Executive Office for Immigration Review ("EOIR") granted INS' motion and sent notification of the change of venue to Holmes on June 5, 2000. Although Holmes sent a response seeking reconsideration, his letter was never considered. On June 22, 2000, INS filed an additional charge against Holmes, claiming he was deportable pursuant to INA § 241(a)(2)(B)(i), 8 U.S.C. § 1251(a)(2)(B)(i), recodified at INA § 237 (a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), because he was an alien convicted of a controlled-substance offense. A copy of INS' motion to transfer venue was sent to Crogan-Mazur — presumably Holmes' counsel of record — prior to the EOIR's ruling on the motion. In the interim, the IIB informed the EOIR that Crogan-Mazur was no longer in its employ and Holmes' case file at the agency had been closed since 1995. This correspondence, however, was dated June 9, 2000, several days after the EOIR had ruled on the motion.

  On July 6, 2000, Holmes appeared pro se at the Fishkill deportation hearing. He informed IJ Mitchell Levinsky that attempts to contact Crogan-Mazur were unsuccessful, and he argued that the court could not decide his case while his 1997 conviction appeal was still pending. He also relayed to IJ Levinsky that he had attempted to appeal the change of venue to no avail. In response, IJ Levinsky informed Holmes that the 1997 conviction was final unless the New York Court of Appeals granted his appeal, and that he was unaware of Holmes' appeal of the change of venue. IJ Levinsky did, however, stay the proceedings to allow Holmes an opportunity to retain counsel. On December 4, 2000, Holmes appeared again in court without counsel and agreed to be represented — following IJ Levinsky's suggestion — by Reverend Robert Vitaglione ("Rev. Vitaglione"), an accredited immigration representative and the director of a free legal services provider for immigration proceedings, Comité Nuestra Señora de Loreto Sobre Asuntos de Inmigración. At the hearing Rev. Vitaglione conceded that Holmes was deportable because of his previous convictions, but requested discretionary relief from deportation based on INS' approval of Holmes' application for his adjustment of status. IJ Levinsky denied the request because he found Holmes ineligible for relief and ordered that he be deported to Jamaica.

  On December 22, 2000, Holmes filed an appeal pro se with the Board of Immigration Appeals, who in turn affirmed IJ Levinsky's deportation order on March 13, 2001. The December 4, 2000 order then became final, thus making it subject to limited collateral review. Holmes sought such review in this Court on December 27, 2001 pursuant to 28 U.S.C. § 2241. I referred the matter to Magistrate Judge Michael H. Dolinger for an R & R. On November 4, 2003, Magistrate Judge Dolinger issued an R & R, denying Holmes' petition on all grounds. Holmes filed timely objections to Magistrate Judge Dolinger's findings on December 5, 2003.*fn6


  A. Scope and Standard of Review

  Following the enactment of the jurisdiction-stripping provisions of the Antiterrorism and Effective Death Penalty Act of 1996 § 440(d), 110 Stat. 1277 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 110 Stat. 3009-546 (Sept. 30, 1996), judicial review of habeas petitions was limited to "purely legal statutory and constitutional claims," Calcano-Martinez v. I.N.S., 232 F.3d 328, 342 (2d Cir. 2000), aff'd, 533 U.S. 348 (2001), and "claims based upon the erroneous application of statutes," Wang v. Ashcroft, 320 F.3d 130, 142-43 (2d Cir. 2003). The Court cannot, however, review factual or discretionary determinations by immigration judges or the Board of Immigration Appeals. Sol v. I.N.S., 274 F.3d 648, 651 (2d Cir. 2001), cert. denied, 536 U.S. 941 (2002). Moreover, a petitioner cannot seek federal judicial review until all administrative remedies are exhausted. Beharry v. Ashcroft, 329 F.3d 51, 56 (2d Cir. 2003).

  With respect to the R & R, the Court reviews those portions to which a petitioner does not object for clear error and it reviews de novo those portions of the R & R to which a petitioner interposes an objection. Fed.R. Civ. P. § 72(b); 28 U.S.C. § 636 (b)(1). Finding no clear error in those portions of the R & R to which there was no objection, ...

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