Wong v. Ashcroft

369 F.Supp.2d 483

Heung Wah WONG, Petitioner, v. John ASHCROFT et al., Respondents.

No. 04 CIV. 4036(DC).

United States District Court, S.D. New York.

May 10, 2005.

Paul M. Gamble, Esq., New York, NY, for Petitioner.

David N. Kelley, Esq., United States Attorney for the Southern District of New York, by Maria E. Douvas, Esq., Assistant United States Attorney, New York, NY, for Respondents.

MEMORANDUM DECISION

CHIN, District Judge.

This habeas case, brought pursuant to 28 U.S.C. § 2241, currently presents two issues: (1) whether petitioner Heung Wah Wong, who pled guilty to a charge of illegal re-entry in this Court, can now collaterally attack the underlying deportation order, and (2) whether Wong may amend his petition (a second time) and assert an ineffective assistance of counsel claim to seek to vacate the guilty plea. For the reasons set forth below, I hold that Wong's guilty plea precludes him from collaterally attacking the deportation order. The petition is deemed amended, however, to include a request to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255 for ineffective assistance of counsel. In other words, Wong will be given an opportunity to try to vacate his guilty plea, and if he succeeds, then he will be given an opportunity to challenge the underlying deportation order.

PROCEDURAL HISTORY

I. Removal Proceedings and Illegal Re-entry Conviction

In 1992, Wong, then a lawful permanent resident of the United States, was convicted in the Supreme Court of the State of New York, New York County, of attempted robbery and attempted criminal possession of a weapon. He was sentenced to one to three years imprisonment.

In 1997, Wong was placed in removal proceedings by the immigration authorities because of his convictions. He did not have the assistance of a lawyer. (Tr. at 1).¹ On August 11, 1997, an immigration judge ordered him removed from the United States. Wong waived his right to appeal, in part because the immigration judge told him that he was ineligible to seek cancellation of removal.² In light of the Supreme Court's subsequent decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), the immigration judge's statement was wrong, for in fact Wong had a right to seek relief from deportation pursuant to § 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (repealed 1996). On October 8, 1997, Wong was deported to the People's Republic of China.

Thereafter, Wong re-entered the United States. He was eventually arrested and charged in this Court with illegal re-entry in violation of 8 U.S.C. § 1326(a) and (b)(2).

On October 9, 2002, Wong pled guilty before Judge Duffy to illegal re-entry. On February 19, 2003, he was sentenced to forty-six months imprisonment. The judgment of conviction was docketed on February 25, 2003. Because Wong did not appeal, his conviction became final on March 13, 2003, ten business days after the judgment was entered. See Moshier v. United States, 402 F.3d 116, 118 & n. 1 (2d Cir.2005); see also Fed. R.App. P. 4(b), 26(a)(2).

II. Habeas Petition

a. Proceedings in the Eastern District of New York

Wong promptly filed, pro se, what he designated a "habeas petition" in the Eastern District of New York (the "Original Petition").³ The Original Petition asked for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 vacating the August 11, 1997 order of deportation. (Pet. ¶ 8 & p. 5).⁴ In the Original Petition, Wong specifically argued that the deportation order was illegal and subject to attack under 8 U.S.C. § 1326(d). (Pet.¶ 10). He also argued that he had recently been prosecuted for illegal re-entry because of the deportation order and that these "further sanctions" gave him the right to attack the validity of the deportation order, citing St. Cyr. (Id. p. 5). He specifically argued that the deportation order should be vacated or that, "in the very least," his "case" — referring to the illegal re-entry case — should be "reopened." (Id.). Wong asked for a remand to the immigration authorities for a § 212(c) hearing. In the Original Petition, Wong did not challenge the effectiveness of his attorney in the illegal re-entry case.

The court (Johnson, J.) appointed counsel for Wong, who then filed an amended petition on November 9, 2003 (the "Amended Petition"). The Amended Petition argued that the August 11, 1997 deportation order was illegal because the immigration judge gave Wong erroneous advice, for, under the Supreme Court's subsequent ruling in St. Cyr, Wong had the right to seek relief from deportation under § 212(c). The Amended Petition did not address the issue of the effectiveness of trial counsel in the illegal re-entry case.

The government responded to the Amended Petition by arguing, inter alia, that the court lacked jurisdiction to entertain the § 2241 petition and that the court should dismiss "so that [Wong] can file a petition pursuant to 28 U.S.C. § 2255 in the Southern District of New York." (Resp. Return at 1). The government argued that Wong was seeking to collaterally attack his illegal re-entry conviction and that such a collateral attack could not be brought via a § 2241 petition. (Id.). The government also argued that venue in the Eastern District was improper. (Id. at 9-11). Finally, the government argued that Wong's request for a remand for a § 212(c) hearing should be denied because the issue was not yet ripe and Wong was precluded from attacking the deportation order because he thereafter re-entered illegally. (Id. at 11-15). The government did not address the merits of Wong's claim that the deportation order was illegal, nor did the government argue that Wong's guilty plea in the illegal re-entry case precluded him from attacking the validity of the underlying deportation order.

On May 26, 2004, the court issued an order transferring the matter to the Southern District of New York, noting, among other things, that the government was arguing that Wong's "challenge to his deportation order implicates his underlying conviction for illegal re-entry, a challenge that would more properly have been brought pursuant to 28 U.S.C. § 2255 in the Southern District of New York, the district of conviction." Wong v. Ashcroft, No. 03 CV 01981(SJ), at 1-2 (E.D.N.Y. May 26, 2004).

b. Proceedings in this Court

After the case was transferred to this Court, the parties submitted supplemental letter briefs. In its initial correspondence to this Court in July 2004, the government argued that Wong was "in essence, seeking to collaterally attack his underlying order of removal in this proceeding and such attacks may generally be raised as a defense under 8 U.S.C. § 1326(d) during the criminal prosecution" and that "for a number of reasons, petitioner is precluded from collaterally attacking the underlying order of removal at this time." (Resp. July 1, 2004 Letter, at 2). The government did not explain what these reasons were. Subsequently the government submitted a supplemental response to Wong's Amended Petition arguing that St. Cyr did not apply to Wong. (Resp. Sept. 3, 2004 Letter, at 3-5). The government also considered the merits of Wong's challenge to the deportation order, concluding that Wong did not meet the requirements set forward in 8 U.S.C. § 1326(d) for a collateral challenge to prior deportation proceedings. (Id. at 6-10). It did not argue again that petitioner was precluded from collaterally attacking the underlying order of removal.

In a reply letter, Wong argued that because the deportation order was constitutionally defective, it should not have been a basis for a criminal offense. (Pet'r Oct. 18, 2004 Letter, at 4). Wong requested that the Court vacate the illegal re-entry conviction and remand the case to an immigration judge for a § 212(c) hearing. Again, he did not raise the issue of ineffective assistance of counsel in the illegal re-entry case.

On April 22, 2005, I held a conference with the parties and raised the issue of whether Wong was precluded from collaterally attacking the deportation order because he had pled guilty to the illegal re-entry charge, an issue the parties had not addressed. I asked for supplemental briefing on the issue and the parties submitted letters on May 3, 2005. Wong argued that a collateral attack should not be barred or, in the alternative, that he should be permitted to amend his petition to add an ineffective assistance of counsel claim because his guilty plea was not knowing and voluntary. The government argued that by way of his guilty plea, Wong waived any alleged defects in the underlying deportation order. It also opposed an amendment to the petition, arguing that the ineffective assistance of counsel claim, which was not being proposed until more than a year after Wong's conviction became final, did not relate back to claims in the Original and Amended Petitions and therefore was untimely.

DISCUSSION

I. Collateral Attack

I conclude that Wong's guilty plea to the illegal re-entry charge precludes him from collaterally attacking the underlying deportation order.

By pleading guilty, Wong admitted all elements of the illegal re-entry charge and is deemed to have admitted the validity of the deportation order. See United States v. Richards, 302 F.3d 58, 71-72 & n. 11 (2d Cir.2002) (holding that defendant's guilty plea to illegal re-entry precluded him from arguing on appeal that he had not been "previously deported"). "A defendant who pleads guilty unconditionally admits all elements of the formal charge and, in the absence of court-approved reservation of issues for appeal, waives all challenges to prosecution except those going to the court's jurisdiction." United States v. Lasaga, 328 F.3d 61, 63 (2d Cir.2003). Here, there was no reservation of rights, and Wong acknowledges that "[t]here are no cases on point dealing with the issue of whether a defective deportation order is a jurisdictional defect." (Pet'r May 2, 2005 Letter, ...