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Aburokbeh v. United States

United States District Court, S.D. Ohio, Eastern Division

December 16, 2016

NEDEL ABUROKBEH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 2:13-CR-00020

          JAMES L. GRAHAM JUDGE

          ORDER AND REPORT AND RECOMMENDATION

          Elizabeth A. Preston Deavers United States Magistrate Judge

         Petitioner has filed the instant Motion to Vacate under 28 U.S.C. § 2255. (Doc. 91.) This matter is before the Court on the instant motion, Respondent's Response in Opposition (Doc. 94), Petitioner's Reply (Doc. 95), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that the Motion to Vacate under 28 U.S.C. § 2255 (Doc. 91) be DISMISSED.

         Petitioner's request for an evidentiary hearing is DENIED.

         Facts and Procedural History

         Petitioner pleaded guilty pursuant to the terms of his negotiated Superseding Plea Agreement pursuant to Rule 11(c)(1)(C), to knowingly possessing with intent to distribute 2500 grams of pentedrone, a Schedule I controlled substance analogue, as defined in 21 U.S.C. § 802(32), knowing that the substance was intended for human consumption, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and § 846. (See ECF Nos. 64, 75.) On February 4, 2014, the Court adopted, without objections, the Magistrate Judge's recommendation to accept Petitioner's guilty plea. Order (Doc. 79.) On April 25, 2014, pursuant to the agreement of the parties, the Court imposed a sentence of 18 months incarceration, to be followed by a term of three years supervised release. Petitioner did not file an appeal. (Docs. 86, 87.)

         According to Petitioner, he completed his prison sentence on that same date, and was released into the custody of the Bureau of Immigration and Customs Enforcement (“ICE”), where he has remained since that time, awaiting deportation on a November 24, 2015, removal order issued by the Board of Immigration Appeals due to his underlying conviction in this case.

         On March 11, 2016, Petitioner filed the instant Motion to Vacate under 28 U.S.C. § 2255. (Doc. 91.) Petitioner asserts that, had he known of the elements required to establish a conviction for the offense charged, as set forth in McFadden v. United States, ___ U.S. ___, 135 S.Ct. 2298 (2015), he would not have pleaded guilty, but would have proceeded to trial. Petitioner maintains that his conviction constitutes a manifest injustice, because the record fails to reflect a factual basis for his guilty plea, his guilty plea was not knowing, intelligent, or voluntary (because he was misinformed regarding the mens rea required to establish a violation of the Analogue Act), and his guilty plea was the product of the ineffective assistance of counsel. According to Petitioner, the record reflects that the Court misinformed him regarding the elements that the prosecution would be required to establish a conviction on the offense charged, and the facts fail to establish his knowledge, as required under McFadden. Petition (ECF No. 91, PageID# 488.) Petitioner states that he was under the influence of a prescription for “Remeron” at the time of guilty, which causes confusion, problems concentrating or thinking, and memory problems. (PageID# 493.) Petitioner claims that his attorney pressured him into entering a guilty plea in order to avoid jail time. Petitioner also asserts that his attorney performed in a constitutionally ineffective manner by failing to properly explain the elements of the offense charged or object to an inadequate factual basis to support the mens rea requirement of the statute at issue. (PageID# 494.)

         It is the position of the Respondent that Petitioner's claims fail to provide a basis for relief.

         Custody Requirement

         Pursuant to § 2255(a),

[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         “A defendant must be ‘in custody' for the conviction or sentence under attack at the time his § 2255 motion is filed.” United States v. Koertel, No. 13-CR-00346, 2016 WL 4524860, at *2 (E.D. Cal. Aug. 30, 2016)(holding that district court lacked jurisdiction to consider § 2255 motion where the petitioner's sentence had completely expired and he remained in the custody of the Department of Homeland Security awaiting removal proceedings)(citing Maleng v. Cook, 490 U.S. 488, 490-91 (1989); United States v. Krboyan, No. 10-cv-2016, 02-cr-5438, 2010 WL 5477692, at *4 (Dec. 30, 2010)). “When a petitioner's sentence for a conviction has fully expired, the conviction may not be directly challenged because the petitioner is no longer ‘in custody' pursuant to that conviction.” Ferqueron v. Straub, 54 Fed.Appx. 188, 190 (6th Cir. 2002) (citing Lackawanna Cty. Dist. Attorney v. Coss, 532 U.S. 394, 401 (2001)). A prisoner who has been released on parole on his unexpired sentence fulfills the “in custody” requirement for habeas corpus review. A petitioner whose sentence has completely expired prior to the filing of his habeas corpus petition, however, does not. Maleng, 488 U.S. at 492-93. Moreover, “[t]he collateral consequences of a conviction for which the sentence has completely expired are insufficient to render a petitioner ‘in custody' under § 2254(a).” Ferqueron, 2002 WL 31828191, at *1 (citing Maleng, 490 U.S. at 492).

         Relevant here, a petitioner's immigration status constitutes a collateral consequence of his conviction that is insufficient to satisfy the “in custody” requirement for federal habeas corpus proceedings. See Ikharo v. DeWine, No. 2:12-CV-489, 2013 WL 2620264, at *2-3 (S.D. Ohio June 11, 2013) (as applied to 28 U.S.C. § 2254) (citing Camera v. New York, No. 11-cv-8235, 2012 WL 3242697, at *3 (S.D.N.Y. Aug. 9, 2012) (“[I]mmigration detention is not ‘custody' for the purposes of establishing jurisdiction to consider habeas petitions challenging a state court conviction pursuant to 28 U.S.C. § 2254.”); Kandiel v. United States, 964 F.2d 794, 796 (8th Cir. 1992) (holding that deportation proceedings constitute a collateral consequence of the conviction insufficient to satisfy in custody requirement for § 2255 proceedings); United States v. Montoya, 891 F.2d 1273, 1293 (7th Cir. 1989); United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988); Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir. 1976); United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975)(per curiam)); Mainali v. Virginia, 873 F.Supp.2d 748, 7511-52 (E.D. Va. June 25, 2012) (same) (citing United States v. Esogbue, 357 F.3d 532, ...


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