Opinion
Civil Action No. 04-1647.
October 27, 2004.
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus. In his petition, Lawrence attacks both the Order of Deportation, pursuant to 28 U.S.C. § 2241, and the conviction that provides the basis for the Order of Deportation, pursuant to 28 U.S.C. § 2254. Rather than dismissing the petition and having him file two separate petitions, I requested the Attorney General to address the claims regarding the deportation and the District Attorney to address the claims regarding the underlying conviction. For the reasons that follow, I recommend that, to the extent Lawrence attacks his underlying conviction, the petition be denied. I further recommend that, to the extent Lawrence attacks the deportation proceedings, the case be transferred to the United States District Court for the Middle District of Pennsylvania.
FACTS AND PROCEDURAL HISTORY :
Lawrence is a native of Jamaica. He entered the United States as a lawful permanent resident on March 8, 1978. On August 15, 1989, Lawrence entered an open guilty plea to four counts of bribery, one count of corrupt organizations, and one count of possession with intent to deliver a controlled substance in the Court of Common Pleas of Philadelphia County. On December 12, 1989, the Honorable Carolyn Engle Temin sentenced Lawrence to an aggregate term of 15-50 years' imprisonment. (N.T. 12/12/89, 24-26). He immediately filed a motion for reconsideration/modification of the sentence, which was denied. His direct appeal was denied when counsel failed to file a brief. Commonwealth v. Lawrence, 87 Phila. 1990.
On October 22, 1990, Lawrence filed a pro se petition for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act, ("PCRA"), 42 Pa.C.S.A. §§ 9541-9551. In the amended petition, filed by counsel, Lawrence claimed that his guilty plea was coerced because his plea counsel had told him that he would get only 11½-23 years' imprisonment instead of the 15-50 he received.
The PCRA Court found that the claim was meritless, noting that the plea colloquy accurately explained the agreement. The Superior Court affirmed the denial of collateral relief on October 15, 1996. Commonwealth v. Lawrence, 3663 Phila. 1995.
On November 7, 1996, the Immigration and Naturalization Service, ("INS"), served Lawrence with an Order to Show Cause and Notice of Hearing, charging him as deportable because: (1) he had been convicted of an aggravated felony (2) he had been convicted of controlled substances offenses; and (3) he had been convicted of two crimes involving moral turpitude, not arising from the same scheme. See 8 U.S.C. § 1227(a)(2)(A)(iii) (aggravated felony); 8 U.S.C. § 1227(a)(2)(B)(i) (controlled substance violation); and 8 U.S.C. § 1227(a)(2)(A)(ii) (two crimes involving moral turpitude).
The INS has been incorporated into the Department of Homeland Security. The responsibilities of the INS related to removal proceedings now belong to the Bureau of Immigration and Customs Enforcement, ("ICE").
On August 11, 1997, a hearing was held before an Immigration Judge. The Immigration Judge ordered Lawrence deported based on the charges listed in the Order to Show Cause. Lawrence failed to appeal the decision of the Immigration Judge. Therefore, the decision became final on September 11, 1998.
In January, 2004, Lawrence was released from state custody into the custody of ICE, for purposes of carrying out his removal. On April 15, 2004, Lawrence filed this petition for habeas corpus claiming that he is entitled to a waiver of deportation and attacking his underlying state conviction. Throughout the petition, Lawrence discusses a massive conspiracy that resulted in his conviction. He seems to believe that, through some politically motivated plot, Jamaicans were targeted by law enforcement officials. (Habeas Petition, at 11). He claims that his counsel was ineffective for failing to advise him that his conviction could result in his deportation and Lawrence claims that the prosecutor failed to disclose exculpatory evidence. He also believes that he is entitled to a waiver of deportation.
§ 2254 — Attack on the Conviction
As previously mentioned, Lawrence entered an open guilty plea to four counts of bribery, and one count each of corrupt organizations and possession with intent to deliver a controlled substance. Lawrence now claims that his counsel was ineffective for failing to inform him that his guilty plea would subject him to deportation. He also alleges that the prosecutor impermissibly withheld exculpatory evidence. Since Lawrence has never presented either of these claims in the state court and has no possibility of doing so at this point, the claims are procedurally defaulted.
Ordinarily, before the federal court will address the merits of a petitioner's habeas claims, the claims must be fairly presented to the state courts. 28 U.S.C. § 2254(b)(1)(A). If the petitioner fails to comply with this exhaustion requirement and there is no forum available in the state courts wherein the petitioner could now present his unexhausted claims, the federal court may excuse the exhaustion requirement. However, when the federal court excuses the exhaustion requirement, a procedural default occurs and the petitioner must establish cause for his default and prejudice resulting, therefrom, or he must establish that the federal court's failure to address the claims on the merits would result in a fundamental miscarriage of justice. Sistrunk v. Vaughn, 96 F.3d 666, 673 (3d Cir. 1996).
A. Ineffective Assistance of Counsel
Lawrence first contends that his plea counsel was ineffective for failing to advise him that his conviction would subject him to deportation. Although Lawrence attacked the validity of his guilty plea in his state collateral appeal, the basis for that claim was counsel's alleged coersion — telling him that he would receive only 11½-23 years. In order for a claim to be considered exhausted in the federal court, the petitioner must present the same legal theory and factual predicate underlying the constitutional claim as he presented in the state courts.McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4 (1982)); Landano v. Rafferty, 897 F.2d 661, 669 (3d Cir. 1990). Lawrence now claims that counsel was ineffective for failing to advise him that his plea would subject him to deportation. He has never presented this issue to the state courts.
It is unclear from the petition whether Lawrence is claiming that counsel merely failed to inform him that he was subject to deportation or whether counsel provided incorrect information regarding his deportability. (Habeas Petition, at 11). We note that, at the time of Lawrence's plea and sentencing the immigration laws provided the Attorney General unfettered discretion in waiving deportation. Scheidemann v. INS, 83 F.3d 1517, 1519 (3d Cir. 1996). It was only after Lawrence's sentencing that Congress limited the Attorney General's discretion, see Immigration Act of 1990, Pub.L. No. 101-649, § 511(a), 104 Stat. 4978, 5052 (1990) (prohibiting discretionary waiver to aliens convicted of aggravated felons who had served at least 5 years); Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, § 440(d),110 Stat. 1214(barring any aggravated felon from discretionary relief, eventually repealing the waiver altogether. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, § 304, 110 Stat. 3009-546.
At this point, Lawrence has no avenue through which to present this claim to the state courts. The PCRA provides for a one-year statute of limitations. 42 Pa.C.S.A. § 9545(b). Ordinarily, that limitations period begins to run on the day the judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). However, the PCRA limitations period will not begin to run until the facts upon which the claim is based were known to the petitioner or could have been discovered through the exercise of diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii). Giving Lawrence the benefit of the doubt, he became aware of this claim on November 7, 1996, when he was served with the Order to Show Cause and Notice of Deportation Hearing. That Notice listed these convictions, and others arising from New York, as the basis for his deportation. Yet, he failed to present his claim in the state courts. With no avenue of state relief available to him, Lawrence has procedurally defaulted the claim and it will be heard only upon a showing of cause and prejudice or that a failure to consider the claim will result in a fundamental miscarriage of justice.
Lawrence fails to provide any explanation for his failure to present this claim to the state courts. Similarly, although he discusses an elaborate conspiracy among Philadelphia police officers to use Jamaicans to sell drugs, Lawrence provides no evidence to support his bald assertions. Absent any evidence of factual innocence, Lawrence's attempt to establish a fundamental miscarriage of justice must fail. See Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) (colorable showing of factual innocence required to excuse default). B. Prosecutorial Misconduct
Lawrence next claims that the prosecutor impermissibly failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). Specifically, Lawrence complains that the "Prosecutor had information from the DEA investigation into petitioner [sic] allegations that Philadelphia Police was [sic] in fact forcing him and other Jamaicans to sell drugs" and did not disclose this information to the defense. (Habeas Petition, at 14). According to Lawrence, the officers involved in this conspiracy were indicted shortly after his conviction.
Again, Lawrence has failed to present this claim to the state courts. Therefore, the claim is procedurally defaulted. In the petition, Lawrence states that he "heard about the indictment from other Jamaicans just recently." (Habeas Petition, at 14). Although this may explain his delay in bringing the claim, it does not explain his failure to present the claim to the state courts, to allow them the first opportunity to address the alleged error. Therefore, his recent discovery of this information does not provide cause to excuse his failure to present the claim to the state courts.
As stated in the discussion of the prior claim, the PCRA provides an exception to the statute of limitations for claims about which the petitioner had no knowledge and could not have obtained knowledge in the exercise of diligence. 42 Pa.C.S.A. § 9545(b)(1)(ii).
Similarly, Lawrence's petition could be read to present an argument for a fundamental miscarriage of justice. As previously mentioned, the basis of Lawrence's attack on his conviction is a conspiracy theory. According to Lawrence, members of the Philadelphia Police Department used Jamaicans to sell drugs for them as part of a political plot. This conspiracy included Judge Temin, the trial court judge, who, according to Lawrence, "hated Jamaicans" and "believe[d] that all Jamaicans were Drug dealers." (Habeas Petition, at 7).
Petitioner believes he was caught up in a Politicial [sic] plott [sic] aimed at decieving [sic] the American people about the drug problem, and he as well as other Jamaicans were being used because of their Nationality to be the scape coat [sic] for some politician to get into office.
(Habeas Petition, at 11). The problem with Lawrence's claim is its complete lack of substantiation. Although he contends that he heard from other Jamaicans about the indictment of the officers involved in his case, he points to no evidence to support this rumor. Nor does he support any of the other facets of his conspiracy theory. In order to satisfy the fundamental miscarriage of justice exception to excuse a procedural default, the petitioner must present the court with "a colorable showing" of his factual innocence. Kuhlmann, at 454. A bald assertion of innocence will not suffice to meet this burden. See Hendel v. Vaughn, 2000 WL 1456906 *2 (E.D. Pa. Apr. 25, 2000). The Third Circuit has held the petitioner must prove that "no reasonable juror would have voted to find him guilty beyond a reasonable doubt." Sweger v. Chesney, 294 F.3d 506, 522-24 (3d Cir. 2002). Lawrence's bald assertions of a vast conspiracy do not suffice to meet this burden.
II. § 2241 — Attack on Deporation
Along with attacking his underlying Philadelphia convictions, Lawrence also contends that he is eligible for a waiver of deportation. Unfortunately, this court does not have jurisdiction to consider this claim. Section 2241 provides that "[w]rits of habeas corpus may be granted by . . . the district courts . . . within their respective jurisdictions." 28 U.S.C. § 2241(a). In the § 2254 context, when a petitioner is attacking his underlying conviction, jurisdiction lies both in the district of incarceration and the district of conviction. 28 U.S.C. § 2241(d). In the immigration context, the warden of the facility wherein the prisoner is located, not the District Director of the INS or the Attorney General, is the proper respondent, and jurisdiction lies in the district wherein that warden is located.See Yi v. Maugans, 24 F.3d 500, 507 (3d Cir. 1994); Miller v. District Director of the INS, 04-2329, 2004 WL 1320887 *1 (E.D. Pa. Jun. 9, 2004) (Welsh, M.J.) approved and adopted, Miller v. District Director of the INS, 04-2329 Order (E.D. Pa. Jun. 21, 2004) (Katz, J.); Valdivia v. INS, 80 F.Supp.2d 326, 333 (D.N.J. 2000) (transferring petition to district wherein the warden was located); Petrova v. Director of INS, 1996 WL 8022 *2 (E.D. Pa. Jan. 2, 1996) (transferring petition to Middle District of Pennsylvania).
Lawrence is currently in the custody of ICE, at the York County Prison. York County lies within the geographical confines of the United States District Court for the Middle District of Pennsylvania. 28 U.S.C. § 118. Therefore, jurisdiction to consider Lawrence's § 2241 petition, rests with the United States District Court for the Middle District of Pennsylvania, not the Eastern District. Therefore, I will recommend that the portion of Lawrence's petition in which he attacks the deportation proceedings be transferred to the Middle District.
Fore the reasons stated above, I make the following:
RECOMMENDATION
AND NOW, this 27th day of October, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be denied in part and transferred in part. To the extent Lawrence attacks his state court conviction, I recommend that the petition be denied. To the extent Lawrence attacks his deportation proceedings and claims he is entitled to a waiver of deportation, I recommend that the case be transferred to the United States District Court for the Middle District of Pennsylvania. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
AND NOW, this day of, 2004, upon careful and independent consideration of the petition for writ of habeas corpus, and after review of the Report and Recommendation of United States Magistrate Judge Jacob P. Hart, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ of habeas corpus is DENIED IN PART AND TRANSFERRED IN PART. To the extent the petitioner attacks his state court conviction, the petition is DENIED. To the extent the petitioner attacks his deportation proceedings and claims he is entitled to a waiver of deportation, the petition is TRANSFERRED to the United States District Court for the Middle District of Pennsylvania.
3. The Clerk of Court is directed to transfer the petition to the United States District Court for the Middle District of Pennsylvania.
4. There is no basis for the issuance of a certificate of appealability.