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Sodhi v. Choate

United States District Court, D. Colorado

July 24, 2019

JANAMJOT SINGH SODHI, Applicant,
v.
JOHNNY CHOATE, Warden,

          ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS

          N. REID NEUREITER, UNITED STATES MAGISTRATE JUDGE

         This matter is before this Court pursuant to the Order of Reference entered May 20, 2019, and the parties' unanimous consent to disposition of this action by a United States Magistrate Judge.

         Applicant is being detained at an immigration detention center in Aurora, Colorado. On April 22, 2019, Applicant filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 8) (“Application”). On May 7, 2019, Respondent was ordered to show cause why the Application should not be granted. On May 29, 2019, Respondent filed Respondent's Corrected Response to Order to Show Cause (ECF No. 24). On June 24, 2019, Applicant filed “Petitioner's Traverse to Respondent's Reply” (ECF No. 25) (“Traverse”). On June 26, 2019, the Court held a hearing on the Application.

         The Court must construe the Application and other papers filed by Applicant liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. After reviewing the record in this case, the Court FINDS and CONCLUDES that the Application should be denied, and the case dismissed.

         BACKGROUND

         Applicant, Janamjot[1] Singh Sodhi, is a native and citizen of India. In February 2010 Applicant was granted lawful permanent resident status in the United States. In June 2013 Applicant was convicted of mail and wire fraud in the United States District Court for the Eastern District of California and he was sentenced to prison for fifty-seven months. See United States v. Sodhi, No. 11-cr-00332-LJO (E.D. Cal. June 27, 2013). Applicant also was ordered to pay restitution in the amount of $2, 386, 000.00. See Id. On March 10, 2017, after being released from prison, immigration officials detained Applicant and commenced removal proceedings.

         On March 27, 2017, Applicant appeared in immigration court and requested a continuance to obtain counsel, which was granted to April 12, 2017. (ECF No. 24-1 (Declaration of Nicholas Mastley) at p.2.) On April 12, 2017, Applicant appeared in immigration court and requested a second continuance to obtain counsel, which was granted to April 26, 2017. (Id.) On April 26, 2017, Applicant appeared with counsel and requested a continuance to respond to the allegations of removability, which was granted to May 10, 2017. (Id.) On May 10, 2017, Applicant appeared with counsel and requested another continuance to present his application for relief, which was granted to August 29, 2017. (Id. at p.3.) On August 29, 2017, Applicant appeared with counsel and requested another continuance, which was granted over opposition to September 27, 2017. (Id.)

         On September 18, 2017, an immigration judge held a bond hearing and denied Applicant's request for release on bond. (Id. & Attach. 3.) Applicant appealed the bond determination and, on January 31, 2018, the Board of Immigration Appeals (“BIA”) denied the appeal. (Id. at p.4 & Attach. 2.)

         On September 27, 2017, Applicant appeared in immigration court with new counsel and requested a continuance, which was granted to November 15, 2017. (Id. at p.3.) On November 15, 2017, Applicant appeared with counsel and an immigration judge granted a joint request for a continuance until December 5, 2017, to consider a potential conflict of interest with a witness. (Id.) On December 5, 2017, Applicant appeared with counsel and requested a continuance, which was granted to December 12, 2017. (Id.) On December 12, 2017, Applicant appeared with counsel and requested a continuance to present his application for relief, which was granted to April 4, 2018. (Id. at pp.3-4.)

         On April 4, 2018, Applicant appeared with counsel and presented his application for relief at a removal hearing. (Id. at p.4.) On May 22, 2018, the immigration judge entered an order of removal and Applicant appealed to the BIA. (Id. & Attach. 4.) On June 22, 2018, Applicant was transferred to the Aurora detention facility. (Id.) On August 9, 2018, the BIA granted Applicant's request for an extension of time to file an appeal brief. (Id. & Attach. 5.) On August 29, 2018, a second request for extension of time was denied. (Id. & Attach. 6.) On November 13, 2018, the BIA denied Applicant's appeal. (Id. at Attach. 4.)

         On December 12, 2018, Applicant filed in the United States Court of Appeals for the Ninth Circuit a Petition for Review from the BIA's decision and a Motion for Stay of Removal. (Id.) On June 27, 2019, the Ninth Circuit entered an Order granting the Motion for Stay of Removal and appointing pro bono counsel to represent Applicant for the purpose of his Petition for Review. (See ECF No. 27.) The Petition for Review remains pending.

         On February 8, 2019, immigration officials issued a Decision to Continue Detention, informing Applicant “that your custody status has been reviewed and it has been determined that you will not be released from the custody of [ICE] at this time” because “[t]here is a significant likelihood of removal in the reasonably foreseeable future.” (ECF No. 25 at p.45.)

         Applicant initiated this habeas corpus action in the United States District Court for the Eastern District of California. On April 1, 2019, the Eastern District of California entered an order transferring the action to the District of Colorado because Applicant is being held at a detention center in Colorado. Applicant was ordered to file an amended pleading on the proper form and, on April 22, 2019, the Application was filed. Attached to the Application is a “Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241” (ECF No. 8-1) that appears to be a copy of the original pleading filed in the Eastern District of California.

         DISCUSSION

         Applicant's claims in this action and the relief he seeks have varied over time. In the Application, Applicant claims the immigration judge and the BIA failed to inform him of his eligibility to seek a waiver of inadmissibility in the removal proceedings; counsel in his criminal case was ineffective by failing to advise him of the immigration consequences of his guilty plea; and counsel in the removal proceedings somehow was ineffective. (See ECF No. 8 at pp.2-3.) As relief Applicant requests an individualized bond hearing before a neutral decision-maker, waiver of inadmissibility, and termination of the removal proceedings because the Notice to Appear was defective. (See ECF No. 8 at p.5.)

         In the pleading attached to the Application, Applicant asserts additional claims that his prolonged detention without a custody redetermination hearing violates his rights under the Due Process Clause of the Fifth Amendment and the Excessive Bail Clause of the Eighth Amendment. (See ECF No. 8-1 at pp.18-19.) As relief Applicant asks either to be released with appropriate conditions of supervision, if necessary, or an order directing immigration officials to schedule a custody redetermination hearing, and he seeks an order terminating the removal proceedings because the Notice to Appear was defective. (See ECF No. 8-1 at pp.19-20.)

         Finally, in the Traverse, Applicant identifies his claims in this action as the following: (1) a Fifth and Sixth Amendment Claim that counsel in his criminal case was ineffective by failing to advise Applicant of the immigration consequences of his guilty plea (ECF No. 25 at pp.15-17); (2) a due process claim challenging Applicant's September 2017 bond hearing because the immigration judge was not a neutral decision-maker, Applicant did not receive an individualized assessment, and there was no clear and convincing evidence to support the denial of bond (ECF No. 25 at pp.1721); (3) a statutory claim contending he is entitled to a custody redetermination hearing because he is being held pursuant to 8 U.S.C. § 1226(a) rather than 8 U.S.C. § 1226(c) (ECF No. 25 at pp.21-24); (4) a due process claim challenging the February 8, 2019 Decision to Continue Detention (ECF No. 25 at pp.24-28); and (5) a due process claim challenging his prolonged detention without a custody redetermination hearing (ECF No. 25 at pp.28-36). As relief Applicant seeks either release under appropriate conditions of supervision or an order directing immigration officials to schedule a custody redetermination hearing. (See ECF No. 25 at pp.37-38.)

         Because Applicant is proceeding pro se, the Court will address all of the claims he asserts in the various filings.

         I. Claim Challenging Criminal Conviction

         The Court first will address Applicant's claim that counsel in his criminal case was ineffective. According to Applicant, “counsel in his criminal case failed to advise the Petitioner about the consequences of his plea agreement as related to his immigration status.” (ECF No. 25 at pp.15-16.) He also alleges that he “placed ‘particular emphasis' on the immigration consequences of a Plea in deciding whether or not to accept his plea agreement, but his criminal counsel failed him considerably [sic] to advise him of his immigration consequences.” (ECF No. 8 at p.3.)

         The Court lacks jurisdiction to consider Applicant's claim challenging the validity of his criminal conviction. “The exclusive remedy for testing the validity of a judgment and sentence, unless it is inadequate or ineffective, is that provided for in 28 U.S.C. § 2255.” Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965); see 28 U.S.C. § 2255(e). A § 2255 motion “must ...


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