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Perez v. United States

August 15, 2006

DUARNIS PEREZ, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



MEMORANDUM - DECISION AND ORDER*fn1

Presently before the Court is a petition and supporting documentation for a writ of habeas corpus filed by Duarnis Perez ("Perez" or "Petitioner"), pursuant to 28 U.S.C. § 2255 ("§ 2255 petition"). See Dkt. Nos. 1, 3. For the following reasons, the petition is granted.

I. BACKGROUND

On July 5, 1996, Perez was deported to the Dominican Republic after he was convicted of, and on the basis of, an aggravated felony, specifically, the manufacture and delivery of heroin. Plea Tr. (Case No. 00-CR-266, Dkt. No. 19) at 15. At the time of his conviction, Perez and the Government believed that Perez was a citizen of the Dominican Republic and, therefore, an alien. Id. In 2000, Perez was arrested in Rouse's Point, New York, and pleaded guilty to one count of illegal reentry after deportation pursuant to 8 U.S.C. § 1326.*fn2 On September 27, 2000, this Court sentenced Perez to incarceration for a term of fifty-seven (57) months followed by supervised release for a term of three (3) years. Petr.'s Mem. No. 1*fn3 (Dkt. No. 1, Ex. B). Perez appealed his sentence arguing that his prior conviction, which significantly increased the maximum guideline sentence, is an element of the crime that should have been charged in the information. The Second Circuit, however, rejected Perez's argument and affirmed this Court's decision on March 28, 2001. See Summ. Order (Case No. 00-CR-266, Dkt. No. 23).

On April 10, 2004, after serving the entire incarcerative portion of his sentence--that is, after spending fifty-seven months in prison--Perez met with a representative of Immigration and Customs Enforcement ("ICE") to commence his deportation proceedings.*fn4 At this meeting, the ICE representative informed Perez that he was, in fact, a United States citizen and, therefore, could not be deported. Petr.'s Aff. (Dkt. No. 3) at ¶¶ 6, 17. In effect, Perez was notified that he had been wrongfully deported in 1996 and, thereafter, wrongfully incarcerated for illegal reentry. Soon after, USCIS issued Perez a Certificate of Citizenship dated July 2, 2004. Petr.'s Mem. No. 1 (Dkt. No. 1, Ex. A).

Unbeknownst to him, Perez automatically had become a naturalized United States citizen on April 13, 1988, derivatively through his mother's successful naturalization.*fn5 Petr.'s Mem. No. 1 (Dkt. No. 1); Petr.'s Aff. (Dkt. No. 3) at ¶¶ 7, 12. Prior to his meeting with the ICE representative, Perez was not notified, in any manner, that he was a naturalized citizen; he had received no documentation concerning his citizenship status. Moreover, none of the attorneys representing him in his initial deportation proceeding or his illegal reentry proceedings suggested to him that he may be a United States citizen. Petr.'s Aff. (Dkt. No. 3) at ¶¶ 7-10. Even his mother did not know that he was a United States citizen. Petr.'s Mem. No. 2 (Dkt. No. 3) at 3 n. 1.

In the middle of 2003, Perez retained Emily Viziri, Esq., as counsel to represent him in his post-incarceration deportation proceedings. In discussing his case with Viziri, the possibility that Perez was a United States citizen was raised; but, after the possibility was raised, Viziri neither provided further advice on, nor secured any proof of, Perez's citizenship status. Petr.'s Aff. (Dkt. No. 3) at ¶¶ 14-16.

On January 13, 2005, Perez filed a petition for a writ of error coram nobis to vacate his conviction in light of the newly discovered fact that he is a United States citizen. Petr.'s Mot. (Dkt. No. 1). On May 25, 2005, this Court ordered that Perez recharacterize his application as one for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255, because he is still in the custody of the United States by virtue of his pending supervised release.*fn6 On October 17, 2005, Perez filed a proper § 2255 petition requesting that the Court vacate his conviction and, in turn, the remainder of his sentence--specifically, his term of supervised release. Petr.'s Mem. No. 2 (Dkt. No. 3). The Government has opposed this petition. Govt.'s Mem. (Dkt. No. 5).

II. DISCUSSION

A. Petitioner is not Time Barred from Seeking Relief

Before the Court can address the claims brought in the instant § 2255 petition, the Court must first determine whether Petitioner is time barred from raising these claims. Pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), there is a one-year statute of limitations for filing a § 2255 petition. This statute of limitations begins to run from the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through ...


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