Opinion
3:01-cv-69-x.
January 2, 2002.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241.
Parties: Petitioner Festus M. Okwilagwe (Okwilagwe) is presently incarcerated at the Dallas County Jail in Dallas, Texas. Respondent is the Immigration and Naturalization Service (INS).
Statement of Case: Petitioner requests review of a decision of the Board of Immigration Appeals (BIA) to deport him to Nigeria (Pet. at 1).
Petitioner entered the United States in 1984 and become a permanent resident in 1987 ( See Resp.'s App. at 013 (Decision and Order of Immigration Judge, April 10, 2000)). At some point, Petitioner married an American citizen; however, the couple has been separated since 1990 ( See id. at 014).
On September 21, 1999, Petitioner was arrested on the basis of a pending warrant for nonpayment of a traffic infraction. He was transferred to INS custody the same day and denied bond (Pet. at 1-2). The INS then charged Petitioner with removability based on his conviction of an aggravated felony — i.e., a conviction for possession of cocaine in violation of TEX. HEALTH SAFETY CODEANN. § 481.115-pursuant to Immigration and Nationality Act (INA) § 237(a)(2)(B)(i), codified at 8 U.S.C. § 1227(a)(2)(B)(i), and a conviction for possession of marihuana in violation of TEX. HEALTH SAFETY CODEANN. § 481.121 pursuant to INA section 237(a)(2)(A)(iii), codified at 8 U.S.C. § 1227(a)(2)(A)(iii) (Resp.'s App. at 009 (Notice to Appear)); BIA's December 6, 2000 decision attached to Pet.). On April 10, 2000, an immigration judge ordered Petitioner's removal to Nigeria, ( Id., BIA's decision at 1). Petitioner appealed the removal order to the Board of Immigration Appeals (BIA), which, thereafter, affirmed the immigration judge's decision on December 6, 2000 ( See BIA's decision).
As defined in 8 U.S.C. § 1101(a)(43), INA § 101(a)(43).
In addition to contesting removability, Petitioner also made an application for asylum and, based upon a fear of torture or persecution, for withholding of removal under 8 U.S.C. § 1231(b)(3), INA § 241(b)(3), for deferral of removal under the United Nations Convention Against Torture, and for cancellation of removal pursuant to INA § 240A.
The immigration judge ruled that Petitioner was ineligible for asylum due to the untimeliness of his filing as well as his failure to establish refugee status or past persecution, that his application for withholding of deportation or deferral of deportation should be denied because he failed to meet his burden of showing that he would "more likely than not" be persecuted or tortured for any reason in Nigeria, and that although he met some of the requirements enunciated in § 240A, subsection (a)(3) precluded his eligibility by virtue of his conviction of an aggravated felony.
Petitioner filed the instant action in District Court on January 9, 2001 (Pet. at 1). After submitting a questionnaire to Petitioner and receiving his answers, the magistrate judge recommended that the instant petition be dismissed for want of jurisdiction under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) ( See Magistrate Judge's Findings, Conclusions, and Recommendation rendered March 14, 2001). Thereafter, the District Court, following an independent review of the pleadings, files and records in Petitioner's case, adopted the magistrate judge's recommendation, rendering judgment, on April 10, 2001, that the instant petition be dismissed. See Okwilagwe v. INS, No. 3-01-cv-69-x (April 11, 2001).
The magistrate judge also denied Petitioner's request for a Certificate of Appealability as premature on March 22, 2001.
On June 28, 2001, Petitioner filed a motion to reopen his case in light of the Supreme Court's June 25, 2001 decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), wherein the Court held that the IIRIRA did not divest the federal district courts of jurisdiction to hear habeas claims raised by petitioners facing removal by INS. Thereafter, the District court vacated its judgment of April 10, 2001, granted Petitioner's motion, and reopened the instant case pursuant to FED. R. CIV. P. 60(b)(6).
In response to this court's show cause order, on November 8, 2001, Respondent filed its response in opposition to Petitioner's Writ of Habeas Corpus, as well as its motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6).
Findings and Conclusions: In the instant petition, four grounds for relief are raised. Specifically, Petitioner alleges that (1) his constitutional rights were violated as a result of an illegal search of his person, whereby the controlled substances which he was subsequently convicted of possessing were acquired; (2) the INS failed to meet its statutory and regulatory burden of proving by clear and convincing evidence that he committed an aggravated felony ( See 8 U.S.C. § 1229a(c)(3), INA § 240(c)(3); 8 C.F.R. § 240.8(a)); (3) the Immigration Judge (IJ) erred in finding that Petitioner was an aggravated felon; and (4) the IJ erred in finding Petitioner ineligible for "cancellation of removal" relief under Section 240A(a).
In this first ground for relief Petitioner claims that he was subjected to an illegal search of his person, which yielded the controlled substances he was subsequently convicted of possessing.
It is important to note that Petitioner is not a state prisoner. See, e.g., Ojo v. INS, 106 F.3d 680 (5th Cir. 1997) (stating that a detained alien, previously convicted of drug offenses, is not a prisoner within the meaning of criminal law). Moreover, in the context of deportation of resident aliens, the Supreme Court has found that deportation proceedings are not intended as punishment. Immigration and Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 1038-39, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984) ("A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry. . . . The purpose of deportation is not to punish past transgressions but rather to put an end to a continuing violation of the immigration laws."); See also Humphries v. Various Federal USINS Employees, 164 F.3d 936, 947 (5th Cir. 1999) (Dennis, concurring in part and dissenting in part).
The record reflects that on September 14, 1998, Petitioner pled nolo contendere to the offense of possession of marihuana in an amount less than two ounces, as charged in the information in Cause No. M9857529-C ( See Resp.'s App. at 005, 007). Additionally, the record indicates that Petitioner had been previously convicted for cocaine possession in May of 1998 ( See Pet. at 5; Resp.'s App. at 009).
As a general rule, a guilty plea, intelligently and voluntarily made, bars the later assertion of constitutional challenges to pretrial proceedings. See Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886,43 L.Ed.2d 196 (1975). The Supreme Court explained the rationale underpinning this rule in Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973), wherein the Court held that "[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.
The legal effect of a plea of nolo contendere is the same as a plea of guilty insofar as the criminal prosecution is concerned. Chavarria v. State, 425 S.W.2d 822, 823 (Tex.Crim.App. 1968); see also Young v. State, 8 S.W.3d 656, 664 (Tex.Crim.App. 2000).
However, an exception to this general rule exists if a State permits a defendant to appeal from an adverse ruling in a pretrial hearing despite the fact that his conviction is based on a guilty plea. See McMann v. Richardson, 397 U.S. 759, 766, and n. 11, 770 n. 13, 90 S.Ct. 1441, 1446, 1448, 25 L.Ed.2d 763. In Lefkowitz, supra, the Supreme Court ultimately held that when state law permits a defendant to plead guilty without forfeiting his right to judicial review of specified constitutional issues, the defendant is not foreclosed from pursuing those constitutional claims in a federal habeas corpus proceeding. 420 U.S. 283, 290-93, 95 S.Ct. 886, 890-92.
In Young v. State, 8 S.W.3d 656, 666-67, the Texas Court of Criminal held that a valid plea of guilty or nolo contendere, notwithstanding the existence or non-existence of a plea-bargain agreement, "waives" or forfeits the right to appeal a claim of error only when the judgment of guilt was rendered independent of, and is not supported by, the error. (Tex.Crim.App. 2000) (emphasis added). Although Young, does not explicate what constitutes a plea "independent of" the error, the underlying facts suggest that a guilty plea after an unsuccessful attempt to suppress incriminating evidence, with or without a plea-bargain agreement, is not "independent of" the error.
Petitioner does not claim that he pled nolo contendere based on his failure to suppress the evidence proffered against him because of an unconstitutional search. Notwithstanding Petitioner's failure to allege, at all, any attempt to suppress the evidence, it is reasonably clear that Petitioner's plea of nolo contendere is completely independent of any alleged error in the State's obtaining of the drug evidence against him. Accordingly, in light of policy reasoning announced by the Supreme Court in Tollett v. Henderson, infra, 411 U.S. at 267, 93 S.Ct. at 1608, since Petitioner solemnly pled nolo contendere, in open court, to the offenses with which he was charged, he is precluded from thereafter raising an independent claim related to the deprivation of constitutional rights that occurred prior to the entry of his plea. Petitioner is not entitled to relief on this ground.
In his second ground for relief, Petitioner claims that the INS failed to meet its statutory and regulatory burden of proving by clear and convincing evidence that he committed an aggravated felony. See 8 U.S.C. § 1229a(c)(3)(A) ; INA § 240(c)(3); 8 C.F.R. § 240.8(a). He also claims that he was prevented from calling the Nigerian embassy. He further contends that he was denied due process and fundamental fairness because the Service failed to certify his conviction record and he did not have an opportunity to admit or deny his prior convictions.
Which provides in pertinent part that: ". . . the Service has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is [removable]. No decision on [removability] shall be valid unless it is based upon reasonable, substantial, and probative evidence." (emphasis added).
Which provides in pertinent part that "[a] respondent charged with [removability] shall be found to be removable if the Service proves by clear and convincing evidence that the respondent is [removable] as charged." (emphasis added).
However, the record belies Petitioner's contentions. According to the opinion rendered by the IJ, Petitioner admitted that each of the factual allegations brought against him, including his prior drug convictions, were true and correct. See Resp.'s App. at 009, 014 (Decision and Order of the Immigration Judge dated April 10, 2000). Moreover, Petitioner's contention related to contacting his embassy does not present a cognizable claim. See United States v. Jimenez-Nava, 243 F.3d 192, 195-(5th Cir. 2001), cert. denied 121 S.Ct. 2620, 150 L.Ed.2d 773 (2001) (Article of the Vienna Convention requiring an arresting government to notify a foreign national of his right to contact his consul does not create a judicially-enforceable right of consultation between a detained foreign national and his consular office); see also Flores v. Johnson, 210 F.3d 456, 457 (5th Cir. 2000), cert. denied 531 U.S. 987, 121 S.Ct. 445, 184 L.Ed.2d 449. Assuming arguendo that the Nigerian embassy was not notified in either of Petitioner's state criminal cases this lack of notice would not affect the validity of his convictions. See Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir. 1996), cert. denied 519 U.S. 995, 117 S.Ct. 487, 136 L.Ed.2d 380 (1996) (The court found the state's failure to notify a foreign national regarding the Vienna Convention's provision providing for contacting his consulate to be harmless error, not meriting reversal). Accordingly, Petitioner is not entitled to relief on this ground.
In his third ground for relief, Petitioner claims that the INS erred by finding that he was removable for the commission of an "aggravated felony" under 8 U.S.C. § 1227(a)(2)(A)(iii).
Okwilagwe was found to be subject to removal (deportation) pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and (2)(B)(i). See Resp.'s App. at 022. § 1227(a)(2)(A)(iii) provides that: "Any alien who is convicted of an aggravated felony at anytime after admission is [removable]."
According to 8 U.S.C. § 1101(43)(B), the term "aggravated felony" means- "illicit trafficking in a controlled substance (as defined in section 802 of Title 21) [Controlled Substances Act] ["CSA"], including a drug trafficking crime (as defined in section 924(c) of Title 18)" (emphasis added). 18 U.S.C. § 924(c)(2) provides that: ". . . the term `drug trafficking crime' means any felony punishable under the Controlled Substances Act ("CSA") ( 21 U.S.C. § 801 et seq.), the Controlled Substances Import and Export Act ( 21 U.S.C. § 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. § 1901 et seq.) (emphasis added).
Which provides in pertinent part: ". . . `controlled substance' means a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B." (Emphasis added).
Petitioner argues that the INS could not have found that he had been convicted of an aggravated felony, claiming that his cocaine possession charge was reduced to a Class A misdemeanor ( See Pet. at 5). Although Respondent's Appendix does not contain a copy of the judgment in this case, Petitioner's claim that he only pled guilty to a misdemeanor is in error. Under Texas state law, cocaine is a Penalty Group 1 drug. See TEX. HEALTH SAFETY CODE ANN. § 481.102(3)(D). The penalty range of possession of cocaine is in turn determined by the quantity which a defendant is determined to have possessed. Id. at § 481.115(b)-(e). However, even possession of less than one gram of cocaine is a felony under Texas state law ( see § 481.115(b)).
This circuit's interpretation of 18 U.S.C. § 924(c) is set out in United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir. 1997). In that case the court was required to address the term "aggravated felony" as it appeared in the U.S. SENTENCING GUIDELINES MANUAL. The defendant there argued that a prior state felony could not be construed as an "aggravated felony" because it would have merely constituted a misdemeanor under the CSA. The Fifth Circuit disagreed.
Since Petitioner was convicted of a state law felony for possession of cocaine, under the Fifth Circuit's interpretation of § 924(c), Okwilagwe's cocaine possession conviction constituted a "drug trafficking crime," which clearly comes within the term "aggravated felony" as set out in 8 U.S.C. § 1101(43)(B), supra.
Moreover, given that the drug which resulted in his May 1998 conviction was a controlled substance other than marihuana (not more than 30 grams), Petitioner is likewise subject to removal (deportation) pursuant to 8 U.S.C. § 1227(a)(2)(B)(i), supra, as determined by the BIA. See Resp.'s App. 022-23.
Insofar as Petitioner contends that the INS erred in finding him ineligible for "cancellation of removal" relief ( 8 U.S.C. § 1229b(a)), the Attorney General's authority to do so is foreclosed by the fact that Okwilagwe was convicted of an aggravated felony. See § 1229b(a)(3).
RECOMMENDATION:
For the foregoing reasons, it is recommended that the § 2241 petition for writ of habeas corpus be DISMISSED.
A copy of this recommendation shall be transmitted to Movant and to counsel for the government.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Serv. Auto Assn., 79 F.3d 1415 (5th Cir. 1996) ( en banc) a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.