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United States v. Brumigin

November 7, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
EUGENE BRUMIGIN, DEFENDANT.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION AND ORDER

Petitioner pro se Eugene Brumigin, a citizen of Guyana, pled guilty on November 24, 2004 to one count of conspiring to distribute marijuana, in violation of 21 U.S.C. § 846, and was sentenced to 12 months imprisonment. On October 31, 2005, immigration charges were filed by the Department of Homeland Security and petitioner was deported on December 9, 2006. Now before this Court is petitioner's application, dated October 27, 2006, to withdraw his plea of guilty and vacate his conviction, pursuant to a writ of error coram nobis, a writ of mandamus pursuant, 28 U.S.C. § 1651, and a writ of habeas corpus, 28 U.S.C. § 2255. For the reasons set forth below, petitioner's application is denied.

Background

The following facts are drawn from the parties' submissions in connection with this motion. Disputes are noted. Petitioner is a citizen of Guyana who was admitted to the United States in 2000 as a Lawful Permanent Resident. In August 2003, petitioner was charged with a conspiracy to distribute and possess with intent to distribute cocaine base and marijuana.

On August 13, 2003, Donald D. duBoulay was appointed as petitioner's attorney. According to petitioner, on an unspecified date, duBoulay advised him that if he accepted a plea agreement, he would not be subject to "any deportation consequences" and would be "released immediately to his wife and children." (Mot. at 17). DuBoulay's explanation, according to petitioner, was that petitioner was "only pleading to 12 months imprisonment [which] cannot be consider [sic] a serious or aggravated offence." (Mot. at 5). According to petitioner, duBoulay knew of petitioner's immigration status and knew that petitioner was "extremely concerned" about avoiding deportation. (Id.).

According to duBoulay, in an affidavit submitted in connection with this application, he "never advised Mr. Brumigin that his plea of guilty and conviction in the case would not subject him to removal proceedings." (DuBoulay Affidavit ¶ 4).

On November 24, 2004, petitioner pled guilty before the undersigned, pursuant to a plea agreement. The plea agreement listed "removal/deportation" as a penalty.*fn1 At the plea colloquy, I told petitioner: "[I]f you plead guilty to this accusation, that could lead to your being removed or deported from the United States." (Transcript of Plea Colloquy at 10, Nov. 24, 2004 ("Tr")). When asked if he understood, petitioner replied "Yes, your Honor." (Id. at 11). After the plea was accepted, I asked the attorneys if there was an INS detainer, and stated, "[i]t is a situation where the defendant might well be sentenced to time served." Addressing defendant, I said, "You may simply go from, as you know, from the MDC or the MCC straight into the immigration facility . . . ." (Id. at 15). On December 14, 2004, I sentenced petitioner to 12 months imprisonment and three years supervised release to follow.

On October 31, 2005, a Notice to Deportable Alien was mailed to the petitioner stating that petitioner was removable from the United States pursuant to § 237(a)(2)(A)(iii) of the Immigration and Nationality Act. 8 U.S.C. § 1227(a)(2)(A)(iii). A deportation warrant was issued on February 22, 2006, and deportation proceedings began on April 20, 2006. On October 27, 2006, petitioner, proceeding pro se, filed the instant petition, which was received by the Court on November 6th, 2006. Petitioner was subsequently deported to Guyana on December 9, 2006.

Petitioner argues that, had he properly been informed about the consequences of his guilty plea, he would have elected to go to trial rather than face deportation.

Discussion

Petitioner styles his application to withdraw his plea of guilty and vacate his conviction as an application "pursuant to a Writ of Error Coram Nobis, 28 U.S.C. § 1651, [and a] Writ of Habeas Corpus, Section 28 U.S.C. § 2255." (Mot. at 2).

It is settled law that a writ of habeas corpus may not be granted when the petitioner is no longer "serving the sentence of the conviction he seeks to vacate." Burke v. U.S., 1992 WL 183752, at *1 n.1 (S.D.N.Y. 1992); see 18 U.S.C. § 2255 ("A prisoner in custody under sentence of a court . . . .") (emphasis added). The present application was filed on October 27, 2006, when petitioner was being held by the Bureau of Immigration and Customs Enforcement ("ICE"). Detention by ICE, while a consequence his conviction, is not "custody" under the federal sentence for the purposes of § 2255. See Cisse v. U.S., 330 F.Supp.2d 336, 339-40, 342 (S.D.N.Y. 2004); Adegbuji v. U.S., 2003 WL 21961122, at *3 (S.D.N.Y. 2004). However, when I sentenced petitioner, I also sentenced him to a three year period of supervised release. See Adegbuji, 2003 WL 21961122 at *2-3 (Petitioner serving period of supervised release is deemed to be "in custody" for purposes of § 2255). So long as petitioner is serving a period of supervised release, even when petitioner is being held on immigration charges, he is properly deemed to be in custody "unless and until he is deported." Chukwurah v. U.S., 813 F.Supp. 161, 163 (E.D.N.Y. 1993). Moreover, petitioner's term of supervised release is to continue if he returns to the United States during its term. Accordingly, § 2255 appears to be a proper avenue for the relief sought by petitioner. See U.S. v. Baptiste, 223 F.3d 188, 189 (3d Cir. 2000) ("[C]oram nobis has traditionally been used to attack convictions with continuing consequences when the petitioner is no longer 'in custody' for purposes of 28 U.S.C. § 2255."); Taylor v. U.S. Bd. of Parole, 194 F.2d 882, 883 (D.C.Cir. 1952) ("Mandamus . . . . cannot be used as a substitute for habeas corpus.")*fn2.

I. Counsel's Advice on Deportation

Petitioner argues that duBoulay provided ineffective assistance by failing to inform him of the consequences of his plea on his immigration status. According to petitioner, such a failure constitutes ineffective assistance of counsel, rendering ...


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