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Allingston-Rose v. United States

December 21, 2007

IAN ALLINGSTON-ROSE, ALSO KNOWN AS DENNIS JOSEPH JONES, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: William J. Martini, U.S.D.J.

OPINION

Petitioner moves under 28 U.S.C. § 2255 to vacate a sentence that this Court imposed after Petitioner pled guilty to the crime of illegally reentering the United States. Petitioner argues that he failed to receive a speedy trial on this charge and that this Court's sentence was excessive. Petitioner also argues that the deportation underlying this conviction was unlawful because the Immigration and Naturalization Service ("INS") lacked grounds to deport him and because INS deported Petitioner before he had an opportunity to exhaust all of his options for appeal. This Court finds that Petitioner has waived his right to file this motion. This Court further finds that Petitioner's arguments are either moot or without merit. Accordingly, Petitioner's motion is DENIED.

I. FACTS AND PROCEEDINGS

Petitioner is a native and citizen of Guyana. (Pet. at 4, 21.) He immigrated to the United States in 1988 and was admitted as a permanent legal resident. (Pet. at 4.) Since then, Petitioner has twice been charged with drug-related offenses and has twice been deported.

Petitioner's first drug-related conviction came in 1998, when Petitioner was arrested in Florida on two counts. (Pet. at 4--5, 18.) The first count charged Petitioner with possession of marijuana with intent to sell, in violation of section 893.13(1)(a)(2) of the Florida Statutes. (Pet. at 18.) The second count charged Petitioner with possession of scales with the intent of using them in connection with a controlled substance, in violation of section 893.147(1) of the Florida Statutes. (Pet. at 18.) Petitioner pled nolo contendere in a Florida Circuit Court to the first count, and the State of Florida agreed to drop the second count. (Pet. at 20.)

Following this conviction, INS commenced removal proceedings against him.*fn1 (Pet. 21.) INS charged that Petitioner was subject to removal for violating section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii), which allows deportation of an alien who commits an "aggravated felony." (Pet. 21.) INS also charged that Petitioner was subject to removal for violating section 237(a)(2)(B)(i) of the INA, 8 U.S.C. § 1227(a)(2)(B)(i), which allows deportation of an alien convicted of violating a state law relating to a controlled substance other than a single offense involving possession of thirty grams or less of marijuana for personal use. Based on these charges, the immigration judge ordered Petitioner deported. (Pet. 22, 24.)

Petitioner appealed this decision to the Board of Immigration Appeals ("BIA"), which affirmed the immigration judge's order. (Pet. 24--26.) Petitioner then filed a motion for reconsideration of the BIA's decision. (Pet. 5.) The BIA denied Petitioner's motion for reconsideration on August 25, 1999, and Petitioner was deported that day. (Pet. 5--6.)

At some point, Petitioner illegally returned to the United States, and on December 11, 2003, BICE officials arrested Petitioner on federal drug charges. (Pet. 12.) The complaint accused Petitioner with possessing more than 500 grams of cocaine with intent to distribute. (Opp'n to Pet. Ex. 1 at 2.)

Petitioner was not indicted on these charges until August 31, 2005.*fn2 (Ex. 1 at 4.) The indictment charged Petitioner with one count of possession of 500 grams or more of cocaine with intent to distribute and with another count of conspiracy to do the same. (Opp'n Ex. 2.) The indictment also charged Petitioner with one count of illegally reentering the United States after his deportation, in violation of 8 U.S.C. § 1326(a) and § 1326 (b)(2). (Ex. 2.)

Petitioner eventually entered into a plea agreement on these federal charges. (Opp'n Ex. 3.) Petitioner pled guilty to illegally reentering the United States, and in exchange the government dropped the other charges. (Ex. 3.) In the plea agreement, Petitioner waived his rights to an appeal or collateral attack, including the right to file a § 2255 motion, with respect to any challenge to "the sentence imposed by the sentencing court if that sentence falls within or below the Guidelines range that results from the agreed total Guidelines offense level of 17." (Ex. 3 at 4, 7.) Based on that plea, this Court sentenced Petitioner to time already served. (Opp'n Ex. 5 at 2.)

As Petitioner was still in the United States illegally, BICE sought again to deport him. On June 27, 2006, a BICE official issued a Warrant of Removal/Deportation for Petitioner. (Opp'n Ex. 8.) The warrant alleged that Petitioner was removable under section 241(a)(5) of the INA, 8 U.S.C. § 1231(a)(5), as an alien who had illegally reentered the United States after having been previously removed. (Ex. 8.)

While in detention awaiting deportation, on July 3, 2007, Petitioner filed the instant § 2255 motion to vacate the sentence imposed by this Court for the crime of illegal re-entry. (Pet. 1.) In this motion, Petitioner makes two categories of arguments.

First, Petitioner challenges the legality of his proceedings before this Court. He argues that this Court illegally enhanced his sentence based on a finding that his Florida drug offense was a "trafficking" offense. (Pet. at 10.) He also argues that the exceptionally long delay between his arrest in 2003 and his indictment in 2005 violates his right to a speedy trial. (Pet. at 14.) Petitioner further alleges that this Court erred in several miscellaneous ways: by not indicting him before a magistrate on the charge of re-entry, by not indicting him on the drug charges, and by appointing him ineffective counsel who failed to file a motion to dismiss the drug charges.*fn3 (Pet. at 14--15.)

Second, Petitioner challenges the legality of his first deportation hearing, which underlies his illegal re-entry conviction. (Pet. at 4.) He argues that INS deprived him of the opportunity for judicial review of his removal by deporting him before he could appeal to a federal court. (Pet. at 6.) He also argues that the Florida drug charge ...


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