The opinion of the court was delivered by: John T. Curtin United States District Judge
Petitioner Jeffrey Wynter, an alien currently detained in the custody
of the United States Department of Homeland Security, Immigration and
Customs Enforcement (collectively, "DHS"), at the Buffalo Federal
Detention Facility in Batavia, New York, pending the execution of a
final immigration order of removal issued against him, has filed this
pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2241 seeking release from detention. Item 1. As directed by this
court's order entered January 4, 2013 (Item 2), respondent*fn1
has submitted an answer and return (Item 4), along with an
accompanying memorandum of law (Item 5), in opposition to the
For the reasons that follow, the petition is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner, a native and citizen of Jamaica, was admitted to the United States at New York, New York, on or about July 11, 1969, as a lawful permanent resident. See Item 4-2 (Exh. A, attached to Declaration of DHS Deportation Officer Juanita Payan, Item 4-1), pp. 8, 11.
According to DHS records, petitioner has been convicted of the following criminal offenses:
a. On or about June 12, 1984, petitioner was convicted in New York State Supreme Court, Monroe County, of Attempted Sexual Abuse in the 1st Degree, in violation of N.Y. Penal Law §§ 110-130.65-01. For this offense, he was sentenced to 5 years probation. On March 26, 1986, petitioner was found in violation of probation and he was re-sentenced to 1 year imprisonment.
b. On or about May 7, 1986, petitioner was convicted in Supreme Court, Monroe County, of Sexual Abuse: contact forcible compulsion, in violation of N.Y. Penal Law § 130.65-01. For this offense, he was sentenced to 3 to 6 years imprisonment.
c. On or about May 13, 1996, petitioner was convicted in Rochester City Court, Rochester, New York, of Criminal Contempt in the 2nd Degree, in violation of N.Y. Penal Law § 215.50-03. For this offense, he was granted a conditional discharge.
d. On or about July 19, 2000, Petitioner was convicted in Supreme Court, Monroe County, of Rape in the 1st Degree, in violation of N.Y. Penal Law § 130.35-01. For this offense, he was sentenced as a second felony offender to 20 years imprisonment. Petitioner appealed the conviction to the Appellate Division of New York State Supreme Court, Fourth Department, which unanimously affirmed the conviction. Petitioner's request for leave to appeal to the New York State Court of Appeals was denied. Petitioner filed a petition in the United States District Court for the Western District of New York for habeas corpus relief from this conviction, pursuant to 28 U.S.C. § 2254. On December 1, 2006, petitioner's § 2254 habeas petition was granted. See Wynters v. Poole, 464 F. Supp. 2d 167 (W.D.N.Y. 2006).
e. On or about August 23, 2000, petitioner was convicted in Supreme Court, Monroe County, of Rape in the 3rd Degree, in violation of N.Y. Penal Law § 130.25-02 and Sodomy, in violation of N.Y. Penal Law § 130.40-02. For these offenses, he was sentenced to 11/2 to 3 years imprisonment. On March 19, 2008, this conviction was vacated by a New York criminal court pursuant to New York Criminal Procedure Law § 440.10. Petitioner was tried again, and on September 25, 2008, he was found guilty of Attempted Rape in the 3rd Degree, in violation of N.Y. Penal Law §§ 110-130.25-02 and sentenced to time served (approximately 6 years and 10 months). Petitioner appealed the September 25, 2008 conviction, which was affirmed by the Appellate Division, Fourth Department, on November 10, 2011. Petitioner then applied for leave to appeal to the Court of Appeals of New York which application was denied on March 8, 2012.
Petitioner's deportation/removal proceedings commenced in October 1988, by service of an Order to Show Cause which charged petitioner with being deportable based upon his 1984 and 1986 convictions on charges of sexual abuse. See Item 4-2, p. 12. On April 7, 1992, petitioner was granted a waiver against deportation pursuant to the former Immigration and Nationality Act ("INA") § 212(c). Id.
On September 18, 2006, DHS issued a Notice to Appear ("NTA") which charged petitioner with being removable from the United States as an aggravated felon based on his August 2000 convictions for the offenses of rape and sodomy. Id. On November 28, 2007, an immigration judge ("IJ") found petitioner to be an aggravated felon ineligible ...