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Frimpong v. United States

January 9, 2009

AIKINS FRIMPONG, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Murphy, District Judge

MEMORANDUM AND ORDER

Petitioner, Aikins Frimpong, seeks a writ of habeas corpus. The United States has responded to his petition and moved to dismiss it. For the reasons set forth below, the petition is dismissed.

FACTUAL BACKGROUND

In his short petition titled "Motion: Request Immediate Release," Frimpong states that he was released from the Federal Correctional Institution in Pekin, Illinois, on May 9, 2008. He was immediately arrested by the Bureau of Immigration and Customs Enforcement ("the Agency") and remains in its custody. Frimpong does not state any legal basis supporting his petition for release except for the assertion that at the time he was sentenced to a federal drug trafficking crime, the Presentence Investigation Report ("PSR") prepared by a United States Probation Officer in the Southern District of Iowa stated the Agency "indicated they will not file a detainer." Frimpong includes with his petition two letters from attorney Alfred E. Willett. The first, dated September 27, 2007, indicates that the attorney would be researching Frimpong's file for information regarding his detention. The second, dated November 16, 2007, encloses a copy of Frimpong's plea agreement on his underlying federal criminal conviction in the Southern District of Iowa. Attorney Willett emphasizes the statement in the PSR that the Agency "indicated they will not file a detainer" and the PSR's statement that Frimpong "is now a legal permanent resident of the United States."*fn1

Frimpong also includes a copy of an order from the United States District Court for the Southern District of Iowa denying two motions requesting immediate release from Agency custody. That court denied Frimpong's motions for lack of jurisdiction because his custody in Illinois was not pursuant to an order of that court, and therefore was not subject to collateral attack under 28 U.S.C. § 2255. The court informed Frimpong that he must file a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the district in which he is incarcerated-the Southern District of Illinois. Frimpong filed the instant petition on July 8, 2008.

This Court completed its threshold review of the petition on September 9, 2008 (Doc. 9) and ordered the United States to respond to the petition. The United States filed both a response and a motion to dismiss the petition indicating the following: Frimpong is a native and citizen of Ghana who entered the United States at Los Angeles, California, on or about September 20, 1976, as a nonimmigrant visitor with authorization to remain in the United States for a temporary period not to exceed March 20, 1977 (Doc. 21, Exh. 1, Declaration of Marva Michelle Hamilton). Frimpong remained in the United States beyond this period. On December 18, 1979, Frimpong filed an application for permanent residency (Doc. 19, Exh. C). There is no indication in the record that this application was granted, but in October 1989 Frimpong was granted "Temporary Resident Alien" status (Doc. 19, Exh. B). According to the Declaration of Marva Michelle Hamilton, Supervisory Adjudication Officer with the United States Citizenship and Immigration Services ("USCIS"), after the October 1989 grant of Temporary Resident Alien Status, Frimpong was required to file an application for adjustment to "lawful permanent resident" status (form I-698) within 43 months. He never filed the appropriate form, and, therefore, he never became a lawful permanent resident of the United States (Doc. 21, Exh. 1).

The record indicates that on July 18, 2002, Frimpong was charged as deportable by the Agency based on (1) his non-citizen status and (2) his June 18, 2002, conviction in a Scott County Iowa District Court for possession of cocaine, for which he was sentenced to three years and 360 days imprisonment (Doc. 19, Exh. E).

On February 2, 2005, Frimpong pleaded guilty in the United States District Court for the Southern District of Iowa to one count of conspiracy to distribute crack cocaine (Doc. 19, Exh. D, p. 1). He was sentenced to 86 months imprisonment but was given credit to his sentence for time served in state custody since February 2002 (Doc. 19, Exh. D, p. 2).

The plea agreement, signed by the Plaintiff, states:

This agreement does not limit, in any way, the right or ability of the government to investigate or prosecute the defendant for crimes occurring outside the scope of this agreement. Additionally, this agreement does not preclude the government from pursuing any civil or administrative matters against the defendant, including, but not limited to civil tax matters and civil forfeiture which arise from or are related to, the facts upon which this investigation is based. (Doc. 19, Exh. L, ¶ 17). The plea agreement is silent as to Frimpong's immigration status.

A warrant for Frimpong's arrest was issued by the United States Department of Homeland Security ("Homeland Security") on July 18, 2002 (Doc. 19, Exh. F). An attached certificate of service indicates that Frimpong was served the warrant on May 12, 2008 (Doc. 19, Exh. F). On May 9, 2008, Frimpong was released from Federal Bureau of Prisons custody to Agency custody (Doc. 19, Exh. G).

On June 11, 2008, the Agency issued a "Final Administrative Removal Order," in which an immigration officer found that Frimpong is neither a citizen of the United States nor a lawfully admitted permanent resident (Doc. 19, Exh. H). The officer further found that Frimpong had been convicted of an aggravated felony, making him ineligible for relief from removal and that Frimpong was therefore deportable as an alien convicted of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). Frimpong was ordered removed from the United States to Ghana.

On July 24, 2008, the Agency sent Frimpong a letter notifying him of its intent to terminate his status as a temporary resident alien. The letter indicated that Frimpong would, however, be allowed to submit evidence in opposition to the proposed termination of his temporary resident status. Frimpong was granted 30 days in which to submit evidence that he had applied for permanent resident status prior to May 17, 2002 (Doc. 19, Exh. I).

On September 9, 2008, the Agency issued a "Notice of Termination of Status As Temporary Resident," indicating its denial of Frimpong's application for status as a temporary resident of the United States. The Notice states that in response to the July 24, 2008, letter, Frimpong submitted evidence, none of which indicates that Frimpong had filed an Application to Adjust Status from Temporary to Permanent Resident within the required time frame. The notice informed ...


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