MEMORANDUM-DECISION AND ORDER*fn1
Currently before the Court is a Petition for Habeas Corpus filed by Christopher Spence ("Petitioner" or "Spence"), pursuant to 28 U.S.C. § 2255. Section 2255 Motion (Dkt. No. 1). After review of the record and the relevant law, and for the reasons that follow, the Petition is denied.
Petitioner, also known as Michael Brown and Harrison Wright, an alien, was deported and removed from the United States after his conviction for commission of an aggravated felony offense. Specifically, Spence was convicted of attempted robbery in the first degree, attempted robbery in the second degree, and assault in the second degree on December 19, 1994, in Bronx County, New York. Transcript of Plea Allocution (Case No. 1:03-CR-0122, Dkt. No. 20) at 12. He had also been convicted of criminal possession of marijuana in the first degree on January 25, 1989, in Queens County, New York. Id.
Petitioner was deported and removed from the United States on May 6, 1998. He was thereafter found in the United States on June 20, 2001, without having obtained the prior express consent of the Attorney General of the United States, which was required to reapply for admission into the United States. 8 U.S.C. § 1326(a) & (b)(2). On March 14, 2003, the Grand Jury in the Northern District of New York returned a one-count indictment against Spence charging him with re-entry after deportation following conviction for commission of an aggravated felony offense in violation of 8 U.S.C. § 1326(a) & (b)(2). Indictment (Case No. 1:03-CR-0122, Dkt. No. 6). On July 10, 2003, Spence pled guilty to the indictment, in the absence of a plea agreement, before the undersigned. On November 4, 2003, Spence was sentenced to seventy-six months imprisonment, three years of supervised release, and a $100 special assessment. Sentencing (Case No. 1:03-CR-0122, Dkt. No. 16). This judgment was entered on December 1, 2003. Judgment (Case No. 1:03-CR-0122, Dkt. No.18). Defense counsel thereafter filed a notice of appeal, an Anders Brief and Appendix, and a Motion to Withdraw as Counsel, while the United States responded with a Motion for Summary Affirmance. Mandate (Case No. 1:03-CR-0122, Dkt. No. 25). The United States Court of Appeals for the Second Circuit granted Spence leave to file a pro se brief, which he filed in addition to a request for appointment of counsel. Id.
Spence made three main arguments on appeal. First, he argued that this Court improperly increased his base offense level by 16 points at sentencing. Second, he claimed that he was improperly deported in 1998. Third, he argued that this Court improperly denied his motion for a downward departure. Mandate (Case No. 1:03-CR-0122, Dkt. No. 25).
On May 28, 2004, the Second Circuit granted defense counsel's Anders motion and the Government's motion for summary affirmance, and also affirmed the judgment of this Court. The Court of Appeals found that in making his first argument, Spence was relying on an improper version of the Sentencing Guidelines, which "predates not only his sentencing date (November 2003), but also the date on which he committed his present crime (June 2001)." Id.
In reference to Petitioner's second argument challenging the deportation proceedings in 1998, the Court found that Spence did not provide a basis on which to collaterally attack his removal proceeding. "Even assuming that [Spence's] prior deportation was procedurally deficient in some manner, he must demonstrate that the procedural infirmity deprived him of judicial review and rendered the proceeding fundamentally unfair" under 8 U.S.C. § 1326(d). Id. He had validly waived his right to appeal the Immigration Judge's removal order and thus was conclusively presumed to be deportable under 8 U.S.C. § 1228(c). Id.
In reference to Petitioner's third argument challenging this Court's denial of his motion for a downward departure, the Court of Appeals recognized that the decision of the district court is generally not reviewable on appeal. United States v. Aponte, 235 F.3d 802, 803 (2d Cir. 2000). The Court further found that none of the exceptions to that rule were applicable here. Mandate (Case No. 1:03-CR-0122, Dkt. No. 25). Furthermore, the Court of Appeals found that Spence's appeal presented "no non-frivolous issues" and thus, denied his request for appointment of counsel as moot. Id. Following this decision, Spence filed a motion to recall the Mandate and for leave to file a motion for rehearing en banc, which was denied on September 19, 2004. Gov't Opp. to 2255 Motion (Case No. 1:05-CV-546, Dkt. No. 5) at 3; Section 2255 Motion (Case No. 1:05-CV-546, Dkt. No. 1) at 13.
Spence then proceeded pro se to file a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. A one year period of limitations applies to such motion and runs from the date of the final judgment of conviction. 28 U.S.C. § 2255. Here, the present habeas motion is timely because it was filed on May 4, 2005, which was within one year of the final judgment.
Under 28 U.S.C. § 2255, a prisoner in custody under sentence by a court may move the court that imposed the sentence to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255. The prisoner must satisfy one of the following grounds: (1) that the sentence imposed was in violation of the Constitution or laws of the United States, (2) that the court was without jurisdiction to impose the sentence, (3) that the sentence was in excess of the maximum authorized by law, or (4) that the sentence is subject to collateral attack. Id. Spence has not successfully proved any of these grounds.
The sentence imposed was not in violation of the Constitution or laws of the United States; this Court, within the Northern District of New York properly exercised jurisdiction; the sentence was not beyond the maximum time authorized by law; and this sentence is not subject to collateral attack. "[A] voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked." Mabry v. Johnson, 467 U.S. 504, 508 (1984). However, the validity of a guilty plea can be called into question if the plea was not voluntary and intelligent, or if prior to pleading guilty the prisoner received ineffective assistance of counsel. Id. at 508-09. Here, Spence argues both that his plea was not voluntary and intelligent and that he received ineffective assistance of counsel because defense counsel did not investigate and failed to challenge his prior deportation, the indictment, and the plea proceeding. Section 2255 Motion (Case No. 1:05-CV-546, Dkt. No. 1) at 8-9. Spence further argues that this Court erred in accepting his guilty plea because during his plea colloquy he allegedly informed the Court that his underlying deportation was unlawful. Id. at 9-10.
A. Spence's Removal Was Not Unlawful
Under 8 U.S.C. § 1326(a), it is a crime for a deported or removed alien to enter, attempt to enter, or to be found in the United States. 8 U.S.C. § 1326(a). An alien is able to defend against this charge by challenging the validity of the deportation order upon which the charge is based. Spence attempts to make this argument with no success.
In a criminal proceeding for illegal re-entry, an alien may not challenge the validity of the deportation unless the alien demonstrates three things. The alien must demonstrate that: (1) he has "exhausted any administrative remedies that may have been available to seek relief against the order," (2) that "the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review", and (3) that "the entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d); United States v. Copeland, 376 F.3d 61, 66 (2d Cir. 2004). These three prongs are "conjunctive and thus [Petitioner] must establish all three" to successfully challenge the removal order. United States v. Fernandez-Antonia, 278 F.3d 150, 157 (2d Cir. 2001). Here, Spence is unable to meet the first prong of the test set forth in United States v. Copeland. He did not exhaust all available administrative remedies that may have been available in order to seek relief against the order because he waived his right to appeal.
Under the first part of the test, it is possible for this exhaustion requirement to be excused if the waiver of the right to appeal was both unknowing and unintelligent. United States v. Calderon, 391 F.3d 370, 371 (2d Cir. 2004). Spence argues, "[a]t no time during this 'proceeding' was the defendant ever advised of his right to appeal . . . ." Section 2255 Motion (Case No.1:05-CV-546, Dkt. No. 1) at 17. This argument is false. Spence also argues that INS agents "tricked him into waiving his constitutional and/or procedural right to a full deportation proceeding", and that the INS agents "set up a mock telephonic hook-up." Id. at 19. This argument is also false. On February 13, 1998, an Immigration Judge in Chicago conducted a telephonic removal proceeding. Tape of Removal Hearing.*fn2 Spence appeared without an attorney and waived his right to counsel. Id. The Immigration Judge specifically informed Spence that he had a right to appeal to the Board of Immigration Appeals and further notified him of the appeal process. Id. Spence waived this right. Id. Spence was informed that he was permanently barred from the United States and that he would face up to twenty years in prison if he returned without permission. Id. Spence made comments such as, "I want to get this over with," and "I just want to get out of here. I want to go to Jamaica . . ." during the removal proceeding. Id. Throughout the entire proceeding, Spence continued to express his desire to go back to Jamaica. Id.
1. Section 212(c) Discretionary Relief
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which took effect on April 24, 1996. Specifically, § 440(d) of the AEDPA, "greatly expanded the range of crimes that rendered aliens statutorily ineligible for § 212(c) relief." Henderson v. I.N.S., 157 F.3d 106, 109 (2d Cir. 1998). In other words, in § 440(d) of AEDPA, Congress identified a broad set of offenses for which convictions would preclude. . . relief. . . . And. . . that same year, Congress passed [Illegal Immigration Reform and Immigrant Responsibility Act of 1996]. That statute, inter alia, repealed § 212(c), . . . and replaced it with a new section that gives the Attorney General the authority to cancel removal for a narrow class of inadmissible or deportable aliens.... So narrowed, that class does not include anyone previously "convicted of any aggravated felony."
I.N.S. v. St. Cyr, 533 U.S. 289, 297 (2001); 8 U.S.C. § 1229b(3)(a). However, the Supreme Court held that "§ 212(c) relief remains available for aliens . . . whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." St. Cyr., 533 U.S. at 326.
Spence argues that because he was not informed of his right to apply for discretionary relief under the former Section 212(c) of the Immigration and Naturalization Act, he is excused from failing to exhaust his administrative remedies. See Section 2255 Motion (Case No. 1:05-CV-546, Dkt. No. 1) at 20. "[A] failure to advise a potential deportee of a right to seek Section 212(c) relief can, if prejudicial, be fundamentally unfair within the meaning of Section 1326(d)(3)." Copeland, 376 F.3d at 71. Spence would need to prove that he was prejudiced by the fundamental error of the IJ's failing to advise him of his right to seek § 212(c) relief. An alien is prejudiced by a fundamental procedural error "where there is a reasonable probability that, but for the IJ's unprofessional errors, the alien would have been granted Section 212(c) relief. " Id. at 73. A number of "adverse factors" are balanced against "the social and humane considerations presented in his behalf to determine whether the granting of section 212(c) relief appears in the best interests of this country." United States v. Sosa, 387 F.3d 131, 138 (2d Cir. 2004) (quoting Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978)). See also Lovell v. I.N.S., 52 F.3d 458, 461 (2d Cir. 1995). Such adverse factors include: "the presence of additional immigration law violations, the existence of a criminal record and its nature, recency and seriousness, and the presence of other evidence indicative of an alien's bad character or undesirability as a permanent resident." Lovell, 52 F.3d at 461. Favorable considerations include: "family ties within this country, residence of long duration in this country, . . . evidence attesting to good character, and, in the case of one convicted of criminal conduct, proof of genuine rehabilitation." Id.
The former § 212(c) has been interpreted to "authorize any permanent resident alien with 'a lawful unrelinquished domicile of seven consecutive years' to apply for a discretionary waiver from deportation." St. Cyr., 533 U.S. at 295. If such relief is granted, then the alien is able to remain a permanent resident and the deportation proceeding is terminated. Id. at 295.
Here, Spence was ineligible for § 212(c) relief because he was not lawfully admitted for permanent residence. LeRoy F. Tario, a group supervisor from U.S. Immigration and Customs Enforcement, certified that "after a diligent search was performed" there was "no record in the database systems indicating that the subject was admitted to the United States at Miami, Florida, on or about December 1984 as a lawful permanent resident." Affidavit of LeRoy F. Tario (Case No.1:05-CV-546, Dkt. No. 9). Furthermore, Tario certified that "[t]here is no documentation . . . that shows the subject was lawfully admitted to the United States or that the subject ever possessed lawful permanent ...