Opinion
03 CV 5566.
April 6, 2004
JAIR DE JESUS CALLE, 82875-054, Fort Dix Federal Correctional Institution Fort Dix, New Jersey, Petitioner, Pro Se.
ROSLYNN R. MAUSKOPF, ESQ, United States Attorney, Brooklyn, New York, Kristen Chapman, Esq., Assistant United States Attorney, Attorneys for Respondent.
MEMORANDUM AND ORDER
Petitioner Jair De Jesus Calle ("Petitioner"), an alien currently serving a criminal sentence and acting pro se, brings the above-captioned petition. Petitioner requests that this Court order his immediate removal to Colombia, his country of citizenship, pursuant to 8 U.S.C. § 1231(a)(4)(B), which allows the Attorney General to remove certain nonviolent criminal offenders prior to completion of their sentence. This Court finds that there is no relief that may be granted, and that the Petition must be dismissed.
BACKGROUND
Petitioner is an alien without lawful immigration status to remain in the United States. On January 10, 1997, Petitioner was deported to Colombia as the result of a conviction for an aggravated felony, criminal sale of a controlled substance (cocaine) in the third degree, in violation of New York Penal Law § 220.39. Petitioner subsequently reentered the United States, and on November 4, 1998 he was arrested in Queens County, New York and charged with criminal sale of a controlled substance in the third degree. Because he had violated the parole for his original conviction, Petitioner was returned to the New York State Department of Corrections to serve his sentence.
Thereafter, an arrest warrant was issued against Petitioner by this Court for his illegal reentry into the United States as an alien convicted of an aggravated felony in violation of 8 U.S.C. § 1326(a), 8 U.S.C. § 1326(b)(2), and 18 U.S.C. § 3551. On January 24, 2000, Petitioner pled guilty to these charges and was sentenced by this Court to a seventy-seven month term of imprisonment and three years supervised release. Petitioner is currently serving his sentence at the Federal Correctional Institution in Fort Dix, New Jersey and is expected to be released on May 8, 2005.
DISCUSSION
Petitioner requests that this Court order his immediate deportation to Colombia pursuant to section 8 U.S.C. § 1231(a)(4)(B), which gives the Attorney General the authority to remove certain non-violent criminal offenders prior to the completion of their sentences. Although it is possible that under 8 U.S.C. § 1231(a)(4)(B) an alien could receive early removal prior to the completion of a sentence of imprisonment by decree of the Attorney General, this is a discretionary determination over which the Court has no jurisdiction. There is no private right to compel deportation prior to the completion of a sentence of incarceration. Title 8 U.S.C. § 1231(a)(4)(D) provides, "no cause or claim may be asserted under this paragraph against any official of the United States . . . to compel the release, removal, or consideration for release or removal of any alien."See also Cepeda v. Immigration and Naturalization Service, 273 F. Supp.2d 222, 224 (E.D.N.Y. 2003) (holding that " 8 U.S.C. § 1231(a)(4)(D) precludes any private right on the part of an alien inmate to bring an action to compel an INS official or any state official, including members of the parole board, to deport him from the United States prior to the completion of his . . . prison term."); Duamutef v. Immigration and Naturalization Service, No. 02 Civ. 1345, 2003 U.S. Dist. LEXIS 8059, *9 (E.D.N.Y. May 14, 2003) (stating that "the clear language of all these statutes makes evident that an alien inmate has no private right to bring an action to compel the Attorney General, an INS official, or any official of New York State, including the members of the Parole Board, to deport him or her from the United States before the completion of his or her period of incarceration.").Petitioner does not suggest any other authority under which the Court may consider his request. In light of Petitioner's status as pro se litigant, the Court must liberally construe the allegations of the complaint. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that a pro se complaint is held "to less stringent standards than formal pleadings drafted by lawyers."). Furthermore, a pro se complaint is interpreted so as "to raise the strongest arguments that [it] suggests." Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (citation omitted). Indeed, "courts may look to submissions beyond the complaint to determine what claims are presented by an uncounseled party."
Boguslavsky v. Kaplan, 159 F.3d 715, 719 (2d Cir. 1998) (holding that pro se litigant should be afforded flexibility in pleading his or her action).
Despite holding this Petition to a less stringent standard, the court is unable to find any avenues of relief. "In order to survive dismissal, a plaintiff must assert a cognizable claim and allege facts that, if true, would support such a claim." Boddie v. Schneide, 105 F.3d 857, 860 (2d Cir. 1997). Petitioner's claim is not cognizable under habeas corpus review. "A writ of habeas corpus under § 2241 is available to a federal prisoner who does not challenge the legality of his sentence, but challenges instead its execution subsequent to his conviction." Carmona v. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001). See also Kingsley v. Bureau of Prisons, 937 F.2d 26, 30, n. 5 (2d Cir. 1991) (holding that "challenges to the length, appropriateness or conditions of confinement are properly brought under 28 U.S.C. § 2241."). Such challenges must be based on some constitutional principle or allegation. In the instant case, Petitioner does not allege a constitutional claim that might serve as the basis for federal jurisdiction over his claims.
No other avenues for habeas relief are available to Petitioner. Title 28 U.S.C. § 2255 provides for challenges to a federal conviction or sentence on the ground that the district court was without jurisdiction or that its judgment violated the United States Constitution or the laws of the United States. Thus, § 2255 is available only to remedy an error in sentencing "which inherently results in a complete miscarriage of justice." United States v. Wright, 524 F.2d 1100, 1101 (2d Cir. 1975). In the instant case, habeas review under § 2255 is not available because Petitioner has not raised a claim of constitutional deprivation regarding the imposition of his sentence.
The common law writ of error coram nobis remains available under the All Writs Act, 28 U.S.C. § 1651(a), despite the statutory enactment of 28 U.S.C. § 2255, which has replaced most common law federal habeas corpus proceedings. However, the writ is strictly limited in its potential application. "Coram nobis is essentially a remedy of last resort for petitioners who are no longer in custody pursuant to a criminal conviction and therefore cannot pursue direct review or collateral relief by means of a writ of habeas corpus." Fleming v. United States, 146 F.3d 88, 89-90 (2d Cir. 1998). This remedy is designed to correct errors "of the most fundamental character." United States v. Morgan, 346 U.S. 502, 512 (1954). Petitioner does not allege any such error. There is no other relief available to Petitioner at this stage.
CONCLUSION
For the foregoing reasons, the Petition must be dismissed. The Clerk of the Court is directed to dismiss the Petition and close this case. Because Petitioner has not made a substantial showing of the denial of any constitutional right, a certificate of appealability will not be issued. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith.
SO ORDERED.