United States District Court, W.D. New York
JOHN T. CURTIN, District Judge.
Petitioner Jeffrey Wynter, an alien under a final order of removal from the United States, has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking release from detention in the custody of the United States Department of Homeland Security, Immigration and Customs Enforcement (collectively, "DHS"), pending the execution of a final immigration order of removal issued against him. Item 1. As directed by this court's order entered October 28, 2013 (Item 2), respondent has submitted an answer and return (Item 4), along with an accompanying memorandum of law (Item 5), in opposition to the petition, and petitioner has filed a responding memorandum (Item 8). 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 Supervisory Detention and Deportation Officer David Krygier, Item 4-1), pp. 2, 5, 12.
According to DHS records, petitioner has been convicted of the following criminal offenses while present in the United States:
a. On or about June 12, 1984, petitioner was convicted in the Monroe County Court, State of New York, 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 the Monroe County Court, State of New York, 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 Monroe County Court, State of New York, of Rape in the 1st Degree, in violation of N.Y. Penal Law § 130.35-1. 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 in the United States District Court for the Western District of New York, a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court for Rape in the 1st Degree. On December 6, 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 Monroe County Court, State of New York, 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 1½ 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.
Item 4-1, ¶ 9.
On October 25, 1988, petitioner was served with an Order to Show Cause which charged him with being deportable based upon his 1984 and 1986 convictions on charges of sexual abuse. See Item 4-2, p. 5. 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, petitioner was served a Notice to Appear ("NTA") which charged him with being removable from the United States as an aggravated felon based on his criminal conviction on August 23, 2000 for the offenses of Rape in the 3rd Degree and Sodomy in the 3rd Degree. Id. at 6, 16. On November 28, 2007, an immigration judge ("IJ") found petitioner to be an aggravated felon ineligible for any forms of relief and ordered him removed from the United States to Jamaica. Id.
On March 24, 2008, petitioner filed a motion with the Board of Immigration Appeals ("BIA") seeking to reopen his immigration proceedings. Id. at 6. On April 4, 2008, the BIA issued a written decision granting petitioner's motion and terminating his removal proceedings because the rape and sodomy convictions underlying petitioner's removability were vacated by a New York criminal court pursuant to New York Criminal Procedure Law § 440.10. Id. at 6-7. As mentioned above, petitioner was re-tried in September 2008, in Supreme Court, Monroe County. He was found guilty of Rape in the 3rd degree, and was sentenced to time served. Id. at 16, 56. His appeal from this conviction was finally dismissed by the state courts on March 8, 2012. See People v. Wynters, 932 N.Y.S.2d 757 (App. Div. 4th Dep't Nov. 10, 2011), leave to appeal denied, 18 N.Y.3d 963 (Mar. 8, 2012).
Petitioner's removal proceedings were then re-commenced by issuance of a further NTA on July 16, 2012, charging petitioner with being subject to removal from the United States pursuant to INA § 237(a)(2)(A)(iii), as an alien who has been convicted of an aggravated felony as defined in INA § 101(a)(43)(A) (murder, rape or sexual abuse of a minor). Id. at 12-13. Petitioner was taken into DHS custody pursuant to an arrest warrant, also issued on July 16, ...