IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
January 29, 2013
ERIC H. HOLDER, RESPONDENT.
The opinion of the court was delivered by: Martin C. Carlson United States Magistrate Judge
(Magistrate Judge Carlson)
REPORT AND RECOMMENDATION
I. Statement of Facts and of the Case
This case involves a habeas corpus petition filed on March 2, 2011, by Miguel Cabrera, a Dominican national who was a federal prisoner serving an aggregate sentence of 216 months imprisonment for participating in a drug trafficking conspiracy and attempting to bribe a federal official. In his habeas corpus petition Cabrera invited us to act favorably upon a request for citizenship which he had unsuccessfully presented both to immigration officials and to the United States Court of Appeals for the Third Circuit.
The respondents addressed this petition in July of 2012, moving to dismiss this petition, arguing: (1) that the doctrine of res judicata precludes relief for Cabrera; and (2) that the claim of citizenship which Cabrera is endeavoring to advance falls beyond the proper scope of this court's habeas corpus jurisdiction. (Doc. 22.) The respondents lodged this fully articulated motion with the court on July 5, 2012, and Cabrera has elected not to contest this motion to dismiss in any fashion in the intervening six months. Since the deadline for opposing this motion to dismiss has long passed, we will, therefore, deem the motion to be ripe for resolution. For the reasons set forth below, it is recommenced that the petition be dismissed.
With respect to this petition the pertinent facts can be simply stated: The petitioner, Miguel Cabrera is a native and citizen of the Dominican Republic who was admitted to the United States on April 4, 1978, as a lawful permanent resident. (Doc. 22, Ex. 1 at 3.) On January 22, 2003, Cabrera pleaded guilty in the United States District Court for the District of Massachusetts to conspiring to distribute controlled substances, and was sentenced to 216 months imprisonment. While in prison, on March 14, 2008, Cabrera also pleaded guilty in the United States District Court for the Eastern District of Virginia to a 2006 bribery of a public official, and was sentenced to a concurrent 24 month prison term. (Id., Ex. 3 at 1.)
Following these two convictions, Cabrera filed from prison an Application for Naturalization (N-400), on October 27, 2009, based on his military service. (Id., Ex. 4 at 1.) On June 15, 2010, United States Citizenship and Immigration Services (USCIS) issued a Notice of Intent to deny this naturalization application, which noted that Cabrera had been convicted of a controlled substance offense which amounted to an aggravated felony. Due to this conviction, immigration officials concluded that Cabrera lacked good moral character and was ineligible for naturalization. (Id.)
Cabrera contested this finding, filing a Request for a Hearing on a Decision in Naturalization Proceedings (N-336), on September 27, 2010. (Id., Ex. 8 at 2.) On November 1, 2010, immigration officials rejected this request finding that it was both untimely and holding that Cabrera's controlled substance conviction was an aggravated felony which precluded Cabrera from showing good moral character. (Id.)
Immigration officials also placed Cabrera in removal proceedings while he sought naturalization. Thus, on July 30, 2009, the Department of Homeland Security issued a Notice to Appear, charging that Cabrera was subject to removal from the United States. (Id., Ex. 1 at 3.) On September 15, 2010, the Immigration Judge ordered Cabrera, finding that his controlled substance conviction was an aggravated felony. (Id., at 5-6.) Thus, the Immigration Judge found Cabrera subject to removal and ineligible for any relief from removal.
Cabrera appealed this decision to the Board of Immigration Appeals (Board), (Id., Ex. 10), which dismissed Cabrera's appeal on December 21, 2010. (Id., Ex. 11 at 1.) In reaching this conclusion, the Board rejected Cabrera's claim that he naturalized through military service; instead, it found that he was statutorily ineligible from naturalizing based on his criminal conviction for an aggravated felony. (Id. at 3-4.)
Dissatisfied with this outcome, Cabrera then appealed the Board's decision to the United States Court of Appeals for the Third Circuit, arguing that the Board had misapplied the law by finding that his conviction was an aggravated felony, and insisting that he naturalized through his military service. (Id. Ex. 12 at 14-15.) On July 8, 2011, the court of appeals denied this petition, holding that:
We are not persuaded by Cabrera--Ozoria's argument [in opposition to his removal]. Conspiracy to commit an aggravated felony is itself an aggravated felony. 8 U.S.C. § 1101(a)(43)(U). We therefore must consider whether the substantive crime that was the object of the conspiracy qualifies as an aggravated felony under § 1101(a)(43). See Tran v. Gonzales, 414 F.3d 464, 468 n. 3 (3d Cir.2005); see also Kamagate v. Ashcroft, 385 F.3d 144, 152--53 (2d Cir.2004). And to identify the object of the conspiracy, we may look to the indictment. See Shepard, 544 U.S. at 26, 125 S.Ct. 1254; Conteh v. Gonzales, 461 F.3d 45, 59 (1st Cir.2006). Here, the indictment charged Cabrera--Ozoria with conspiracy to possess and distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), 846. This substantive offense-possession and distribution of more than five kilograms of cocaine-unquestionably qualifies as an aggravated felony. Section 1101(a)(43)(B) defines "aggravated felony" to include "a drug trafficking crime (as defined in section 924(c) of Title 18)." Section 924(c)(2), in turn, defines a "drug trafficking crime" to include "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)." Moreover, the Controlled Substances Act (CSA) "defines as, felonies' ... those crimes to which it assigns a punishment exceeding one year's imprisonment." See Lopez v. Gonzales, 549 U.S. 47, 56 n. 7, 127
S.Ct. 625, 166 L.Ed.2d 462 (2006). Thus, a conviction will qualify as an aggravated felony under § 1101(a)(43)(B) if it is for a crime that is punishable under the CSA and for which more than one year's imprisonment may be imposed. The object of Cabrera--Ozoria's conspiracy meets these requirements: § 841 is part of the CSA and prescribes a maximum penalty of life imprisonment, see § 842(b)(1)(A). Accordingly, we agree with the BIA that Cabrera--Ozoria was convicted of an aggravated felony. We observe that on appeal, Cabrera--Ozoria has not renewed his argument that he became a citizen on account of his service in the military. He does argue that he is eligible to apply for naturalization. However, even assuming that Cabrera--Ozoria is correct on this legal issue (which is questionable, given his aggravated-felony conviction, see, e.g., O'Sullivan v. U.S. Citizenship & Immigration Servs., 453 F.3d 809, 812 (7th Cir.2006)), he remains removable. See, e.g., Zegrean v. Att'y Gen., 602 F.3d 273, 274--75 (3d Cir.2010). Cabrera-Ozoria v. Attorney Gen. of U.S., 436 F. App'x 111, 114 (3d Cir. 2011).
It is against this backdrop of thorough, and thoroughly unsuccessful litigation of these claims, that Cabrera filed a writ of habeas corpus with this court, requesting de novo review of his naturalization request.
For the reasons set forth below, this request must be denied.
A. Under The Rules of This Court This Motion to Dismiss Should
Be Deemed Unopposed and Granted
At the outset, under the Local Rules of this court the petitioner should be deemed to concur in these motions to dismiss, since Cabrera has failed to timely oppose the motion, or otherwise litigate this case. This procedural default completely frustrates and impedes efforts to resolve this matter in a timely and fair fashion, and under the rules of this court warrants dismissal of the action, since Local Rule 7.6 of the Rules of this court imposes an affirmative duty on the plaintiff to respond to motions and provides that:
Any party opposing any motion, other than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the movant's brief, or, if a brief in support of the motion is not required under these rules, within seven (7) days after service of the motion. Any party who fails to comply with this rule shall be deemed not to oppose such motion. Nothing in this rule shall be construed to limit the authority of the court to grant any motion before expiration of the prescribed period for filing a brief in opposition. A brief in opposition to a motion for summary judgment and LR 56.1 responsive statement, together with any transcripts, affidavits or other relevant documentation, shall be filed within twenty-one (21) days after service of the movant's brief.
Local Rule 7.6 (emphasis added).
It is now well-settled that "Local Rule 7.6 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency 'if a party fails to comply with the [R]ule after a specific direction to comply from the court.' Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (1991)." Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL 3703808, *1 (M.D. Pa. Aug.26, 2010). In this case Cabrera has not complied with the local rules, or this court's Standing Practice Order, by filing a timely response to this motion. Therefore, these procedural defaults by the petitioner compel the court to consider:
[A] basic truth: we must remain mindful of the fact that "the Federal Rules are meant to be applied in such a way as to promote justice. See Fed.R.Civ.P. 1. Often that will mean that courts should strive to resolve cases on their merits whenever possible. However, justice also requires that the merits of a particular dispute be placed before the court in a timely fashion ...." McCurdy v. American Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d Cir.1998).
Lease v. Fishel, 712 F. Supp. 2d 359, 371 (M.D.Pa. 2010).
With this basic truth in mind, we acknowledge a fundamental guiding tenet of our legal system. A failure on our part to enforce compliance with the rules, and impose the sanctions mandated by those rules when the rules are breached, "would actually violate the dual mandate which guides this court and motivates our system of justice: 'that courts should strive to resolve cases on their merits whenever possible [but that] justice also requires that the merits of a particular dispute be placed before the court in a timely fashion'." Id. Therefore, we are obliged to ensure that one party's refusal to comply with the rules does not lead to an unjustified prejudice to those parties who follow the rules.
These basic tenets of fairness apply here. In this case, the petitioner has failed to comply with Local Rule 7.6 by filing a timely response to the motion to dismiss filed by the respondents in this case. This failure now compels us to apply the sanction called for under Rule 7.6 and deem the plaintiff to not oppose these motions to dismiss.
B. Cabrera's Claims Fail on their Merits
More fundamentally, Cabrera's claims fail on their merits. Stripped to its essentials, this petition invites us to examine the merits of removal and naturalization decisions, and urges us to effectively overrule a decision of the court of appeals relating to these issues.
This we cannot do. At the outset, to the extent that Cabrera invites this court, in the guise of a federal habeas corpus petition, to weigh into a dispute regarding his entitlement to citizenship, the petitioner fundamentally misconstrues the scope of our federal habeas corpus jurisdiction in such immigration matters. The writ of habeas corpus, one of the protections of individual liberties enshrined in our Constitution, serves a specific, and well-defined purpose. The writ of habeas corpus exists to allow those in the custody of the state to challenge in court the fact, duration and lawfulness of that custody. As the United States Court of Appeals for the Third Circuit has aptly noted: "The underlying purpose of proceedings under the 'Great Writ' of habeas corpus has traditionally been to 'inquire into the legality of the detention, and the only judicial relief authorized was the discharge of the prisoner or his admission to bail, and that only if his detention were found to be unlawful.' " Powers of Congress and the Court Regarding the Availability and Scope of Review, 114 Harv. L.Rev. 1551, 1553 (2001)." Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir. 2002).
In cases like this, however, where an inmate is seeking a judicial finding that he is, in fact, a citizen of the United States, as part of some challenge the legality of his conviction and removal from the United States, such a claim can only be brought through a petition filed with the United States Court of Appeals. In 2005, Congress enacted the Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, codified at 8 U.S.C. § 1252, which eliminated the district courts' habeas corpus jurisdiction over final removal orders in almost all cases. This principle applies with particular and specific force to habeas corpus petitions by criminal aliens who wish to challenge the denial of a claim of citizenship, which is precisely what Cabrera is attempting to do in this case.
This issue was addressed by the United States Court of Appeals for the Third Circuit in Jordon v. Attorney General of the United States, 424 F.3d 320 (3d Cir. 2005). In Jordon, the appellate court was confronted with a similar situation: A claim of citizenship advanced by a federal prisoner serving a criminal sentence. In clear and precise terms, the court of appeals held that, under the REAL ID Act, such claims could not be brought by habeas corpus petitions but rather must be presented to the court of appeals. As the court of appeals observed:
Several provisions of 8 U.S.C. § 1252 (both pre- and post-REAL ID Act) make the courts of appeals, not district courts, the first and often last judicial arbiter of nationality claims . . . . The REAL ID Act, which became law just days after argument in this case on May 11, 2005, allows us to avoid the dense thicket of habeas jurisdiction over nationality claims. The REAL ID Act amended 8 U.S.C. § 1252 in several pertinent respects. First and foremost, it made petitions for review filed with the court of appeals the "sole and exclusive means for judicial review of" most orders of removal, including the order of removal at issue here. See 23 8 U.S.C. § 1252(a)(5) (1999 & Supp.2005); Bonhometre v. Gonzales, 414 F.3d 442, 445 (3d Cir.2005). In so doing, the Act expressly eliminated district courts' habeas jurisdiction over removal orders. Id.; see also Kamara v. Attorney General of the United States, 420 F.3d 202, 208 (3d Cir.2005). At the same time, the Act also enlarged our jurisdiction, stating that none of its provisions "which limit[ ] or eliminate[ ] judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section." 8 U.S.C. § 1252(a)(2)(D) (2005); Bonhometre, 414 F.3d at 445. We have explained that this amendment evidences Congress's "intent to restore judicial review of constitutional claims and questions of law presented in petitions for review of final removal orders. This now permits all aliens, including criminal aliens, to obtain review of constitutional claims and questions of law upon filing of a petition for review with an appropriate court of appeals." Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir.2005).
Jordon v. Attorney General of United States, 424 F.3d 320, 326-27 (3d Cir. 2005). See, e,g., Chuva v. Attorney General, 424 F. App'x 176 (3d Cir. 2011)(district court properly dismissed habeas corpus petition which raised derivative citizenship claim, in favor of REAL ID Act review by court of appeals); Perez v. Attorney General, 391 F. App'x 1000 (3d Cir. 2010)(appellate court review of derivative citizenship claim); Rodrigues v. Attorney General, 321 F. App'x 166 (3d Cir. 2009)(same).
In sum, requests by alien inmates to adjudicate claims of citizenship fall beyond the habeas corpus jurisdiction of this court. Instead, those claims must under the REAL ID Act be addressed to the court of appeals. Moreover, in this case the court of appeals has already clearly spoken, and has flatly rejected Cabrera's claims of citizenship, stating unequivocally that: "we agree with the BIA that Cabrera--Ozoria was convicted of an aggravated felony" and further observing that "even assuming that Cabrera--Ozoria is correct on this legal issue (which is questionable, given his aggravated-felony conviction, see, e.g. O'Sullivan v. U.S. Citizenship & Immigration Servs., 453 F.3d 809, 812 (7th Cir.2006)), he remains removable. See, e.g. Zegrean v. Att'y Gen., 602 F.3d 273, 274--75 (3d Cir.2010)." Cabrera-Ozoria v. Attorney Gen. of U.S., 436 F. App'x 111, 114 (3d Cir. 2011).
Given this plain expression of the appellate court's position concerning this dispute, the respondents correctly note that the res judicata, collateral estoppel and issue preclusion doctrines compel dismissal of this petition. Collateral estoppel, res judicata and issue preclusion are doctrines which play a vital role in litigation. It has long been recognized that "[t]he doctrine of . . . collateral estoppel, now . . termed . . . issue preclusion, 'shar[es] the common goals of judicial economy, predictability, and freedom from harassment....' Gregory v. Chehi, 843 F.2d 111, 116 (3d Cir.1988). Generally speaking, the . . . doctrine of issue preclusion, 'precludes the relitigation of an issue that has been put in issue and directly determined adversely to the party against whom the estoppel is asserted.' Melikian v. Corradetti, 791 F.2d 274, 277 (3d Cir.1986)." Electro-Miniatures Corp. v. Wendon Co., Inc. 889 F.2d 41, 44 (3d. Cir.1989)(citations omitted).
The parameters of this doctrine, which precludes relitigation of certain issues, have been defined by the United States Court of Appeals for the Third Circuit in the following terms:
Issue preclusion, or collateral estoppel, prevents parties from relitigating an issue that has already been actually litigated. "The prerequisites for the application of issue preclusion are satisfied when: '(1) the issue sought to be precluded [is] the same as that involved in the prior action; (2) that issue [was] actually litigated; (3) it [was] determined by a final and valid judgment; and (4) the determination [was] essential to the prior judgment.' " Burlington Northern Railroad Co. v. Hyundai Merch. Marine Co., 63 F.3d 1227, 1231-32 (3d Cir.1995) (quoting In re Graham, 973 F.2d 1089, 1097 (3d Cir.1992)); see also Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, n. 5(1979). In its classic form, collateral estoppel also required "mutuality"-i.e., that the parties on both sides of the current proceeding be bound by the judgment in the prior proceeding. Parklane Hosiery, 439 U.S. at 326-27. Under the modern doctrine of non-mutual issue preclusion, however, a litigant may also be estopped from advancing a position that he or she has presented and lost in a prior proceeding against a different adversary. See Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 324 (1971); Parklane Hosiery, 439 U.S. at 329. For . . . non-mutual issue preclusion  to apply, the party to be precluded must have had a "full and fair" opportunity to litigate the issue in the first action. See Parklane Hosiery, 439 U.S. at 328; Blonder-Tongue Labs., 402 U.S. at 331.
Peloro v. United States, 488 F.3d 163, 174-5 (3d.Cir. 2007).*fn1 Stated succinctly, principles of collateral estoppel compel a later court to honor the an earlier decision of a matter that was actually litigated. Dici v. Commonwealth of Pa., 91 F.3d 542 (3d Cir. 1997). This doctrine, which involves an assessment of the overlap between issues presented in separate lawsuits, raises essentially legal questions which are often amenable to resolution by courts as a matter of law. See, e.g., Peloro v. United States, supra; Jean Alexander Cosmetics, Inc. v. L'Oreal USA, Inc, supra; Witkowski v. Welch, 173 F.3d 192, 198-205 (3d. Cir. 1999); Burlington Northern Railroad Co. v. Hyundai Merchant Marine Co., Ltd.,, 63 F.3d 1227, 1231-9 (3d. Cir. 1995)(summary judgment, offensive issue preclusion).
Here, we find that all of the legal requisites for issue preclusion are fully satisfied. " '(1) the issue sought to be precluded [is] the same as that involved in the prior action; (2) that issue [was] actually litigated; (3) it [was] determined by a final and valid judgment; and (4) the determination [was] essential to the prior judgment.'" Burlington Northern Railroad Co. v. Hyundai Merch. Marine Co., 63 F.3d 1227, 1231-32 (3d Cir.1995) (quoting In re Graham, 973 F.2d 1089, 1097 (3d Cir.1992)); see also Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, n. 5(1979). Since, the appellate court ruling in Cabrera-Ozoria v. Attorney Gen. of U.S., 436 F. App'x 111, 114 (3d Cir. 2011) by its terms forecloses further debate on these legal issues regarding Cabrera's citizenship, we should decline Cabrera's invitation to indulge in such debate, and grant the pending motion to dismiss this petition.
Accordingly, for the foregoing reasons, upon consideration of this Petition for Writ of Habeas Corpus, IT IS RECOMMENDED that motion to dismiss the instant petition for writ of habeas corpus, (Doc. 22) be GRANTED and the petition should be DISMISSED.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Martin C. Carlson