Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Younker v. United States

January 25, 2008

BERNADETTE YOUNKER, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Sprizzo, D.J.

MEMORANDUM OPINION AND ORDER

Pro se petitioner Bernadette Younker filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241 (hereinafter "§ 2241 Petition"), dated August 12, 2005. Petitioner challenges the Indictment against her on the grounds that the Indictment was allegedly based upon an unlawful removal order. On September 10, 2007, petitioner filed an Application for Appointment of Counsel pursuant to 18 U.S.C. § 3006A(g) for assistance with her § 2241 Petition. The Government submitted a Response to petitioner's § 2241 Petition, dated October 18, 2007.

Petitioner pled guilty to the charge of illegal re-entry after deportation and was sentenced on December 15, 2005. Petitioner filed a motion to Vacate, Set Aside, or Correct her sentence under 28 U.S.C. § 2255, dated January 15, 2007. Petitioner then submitted an amended motion pursuant to 28 U.S.C. § 2255, dated June 24, 2007 (hereinafter "§ 2255 Petition"). Petitioner challenges her sentence on the ground of ineffective assistance of counsel. The Government submitted a Response, dated October 4, 2007. For the reasons set forth below, the Court hereby dismisses both petitions and denies petitioner's Application for Appointment of Counsel.

BACKGROUND

Petitioner, a citizen of Great Britain, was a resident of the United States. See Govt.'s Mem. of Law in Opposition to Def.'s § 2255 Petition at 2 (Govt.'s § 2255 Mem.). On February 21, 1992, she was convicted of possession of a criminal substance with intent to distribute in the second degree. See id. The Court sentenced her to a term of imprisonment of seven years. See id. As a result of petitioner's conviction, an immigration judge ordered her removed from the United States on December 2, 1994. See id.

Petitioner subsequently reentered the United States without the permission of the Attorney General. See id. After several convictions for crimes including attempted petit larceny and petit larceny, petitioner was determined to be an illegal alien who had previously been deported. See id. On August 12, 2005, petitioner was arrested for illegal re-entry after deportation. See id. Petitioner then filed a § 2241 Petition, challenging the Indictment against her on the grounds that the Indictment was allegedly based upon an unlawful removal order. See § 2241 Petition.

On September 13, 2005, petitioner entered a plea of guilty to the charge of illegal re-entry into the United States after deportation. See Govt.'s § 2255 Mem. at 3; § 2255 Petition at 2.

Before the plea proceeding, the Government informed petitioner that she faced a Sentencing Guidelines range of 46 to 57 months' imprisonment. See Govt.'s § 2255 Mem. at 3. On December 15, 2005, this Court sentenced petitioner to 46 months' imprisonment. See id. at 4; § 2255 Petition at 2; Sentencing Tr. dated Dec. 15, 2005, at 13. Petitioner filed a direct appeal of that sentence, which was affirmed by the United States Court of Appeals for the Second Circuit. See id.; Govt.'s § 2255 Mem. at 4; § 2255 Petition at 3.

On January 15, 2007, petitioner filed a § 2255 Petition, arguing that she received ineffective assistance of counsel at her sentencing hearing. By Order dated June 4, 2007, Chief Judge Kimba Wood granted petitioner 60 days to amend her motion to comply with Rule 2(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. Petitioner then filed the instant § 2255 Petition.

DISCUSSION

I. Petitioner's § 2241 Petition

On August 12, 2005, Petitioner was arrested for illegal re-entry into the United States. See Govt.'s Mem. of Law in Opposition to Def.'s § 2241 Petition at 4 (Govt.'s § 2241 Mem.). Petitioner filed a § 2241 Petition challenging the Indictment against her because the Indictment was allegedly based upon an unlawful removal order. See § 2241 Petition. Specifically, petitioner argues that the immigration judge's failure to inform her of her right to seek discretionary relief under 212(h) of the Immigration and Nationality Act was procedural error sufficient to render the deportation order fundamentally unfair. See id.

To the extent petitioner is merely challenging a final order of deportation, § 2241 offers her no avenue to relief. On May 11, 2005, the Real ID Act of 2005, Pub. L. No. 109-13, § 106, 119 Stat. 231 (May 11, 2005) was enacted. Under Section 106 of the Act, a "petition for review filed with an appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this Act." Therefore, the REAL ID Act clearly deprives this Court of jurisdiction over the petitioner's claim.

Notwithstanding the jurisdictional bar to petitioner's claim, such a challenge would nonetheless be futile. It is well-settled that a guilty plea in a criminal case "foreclose[s] direct inquiry into the merits of claimed antecedent constitutional violations." Tollett v. Henderson, 411 U.S. 258, 266 (1973). As the Supreme Court further explained, "[w]hen a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Id. at 267. Since petitioner pled guilty to the Indictment on September 13, 2005, she cannot continue to challenge the Indictment under any form of habeas proceeding. Accordingly, the Court hereby dismisses petitioner's ยง 2241 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.