Jean Camille Chamblin v. INS CV-98-97-JD 02/28/00 P UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Jean Camille Chamblin, a/k/a John Chamblin

v. Civil No. 98-97-JD Opinion No. 2000DNH047 Immigration and Naturalization Service

REPORT AND RECOMMENDATION

Before me for a Report and Recommendation is the motion for

attorney's fees in excess of the statutory limit set forth in the

Criminal Justice Act ("CJA"), 18 U.S.C. § 3006A(d)(2), filed by

petitioner's appointed counsel. Counsel requests payment of

$10,682.93 (consisting of $9,364.50 in fees plus $1,318.43 in

costs) for representing petitioner, an Immigration and

Naturalization Service ("INS") detainee, in his successful habeas

corpus petition under

. The INS contends that

the CJA does not authorize the appointment of counsel for an INS

detainee, and that the amount requested is excessive.

For the reasons set forth below, I recommend granting the

motion and awarding fees and costs under the CJA in the total

amount requested.

Background

Petitioner, Jean Camille Chamblin, was an INS detainee who has since been released. While detained, Chamblin applied for an

administrative waiver of deportability under former section

212(c) of the Immigration and Naturalization Act,

(c) (1988). An Immigration Judge denied the application,

and the Board of Immigration Appeals ("BIA") affirmed.

Thereafter, Chamblin filed a petition for writ of habeas

corpus pursuant to

, seeking a remand of his

212(c) application to the BIA, citing Goncalves v. Reno,

(1st Cir. 1998), cert, denied, 119 S. C t . 1140 (1999).

Chamblin also reguested release from federal detention pending

the outcome of the remand.

In a motion filed on September 1, 1998, Chamblin moved for

the appointment of counsel (document no. 11) to assist him in

litigating his petition. On September 28, 1998, I granted the

motion and expressly cited the CJA as authority for the

appointment. See Order (document no. 23).

Chamblin's habeas corpus petition was ultimately successful.

Following extensive briefing over the course of a year,

intervening action by the Supreme Court on a petition for

certiorari in Goncalves and on related matters, and my issuance

of a Report and Recommendation (document no. 38) recommending

2 that the petition be granted, Chamblin's fortune changed. The

BIA reconsidered the 2 1 2 (c) waiver petition and remanded the

matter to an Immigration Judge, and the INS modified its

interpretation of

, which it had previously argued

precluded the possibility of release pending deportation in

Chamblin's case. Chamblin received a bail hearing before an

Immigration Judge and was released from INS custody. These

events mooted the petition. The district court dismissed the

petition upon the Government's motion.

Discussion

A. CJA Appointment

_____ The Government, at this late stage in the case, contends

that the CJA did not authorize the appointment of counsel for

Chamblin, since he was an INS detainee, and not a prisoner or a

criminal defendant. See Respondent's Opposition to Appointment

of Counsel at 2 (document no. 49).

It is troubling that the Government has filed its opposition

to the CJA appointment so late in the case without any

explanation for the timing. Petitioner's counsel has incurred

substantial fees and costs since my September 1998 order of

appointment. Since the burden of proof necessary to estop the

3 Government is high and unmet here, I will address the

Government's arguments on the merits.

The plain language of the CJA does not support the

Government's position. The CJA expressly authorizes the

appointment of counsel for indigent persons petitioning for writ

of habeas corpus under

. It does not contain the

caveat that the Government argues is implicit, limiting its

application to "persons in the criminal justice system or persons

who are prisoners, serving sentences because of criminal

convictions," Respondent's Opposition to Appointment of Counsel

(document no. 49) at 2. The statute provides as follows, in

pertinent part:

Whenever the United States magistrate or the court determines that the interests of justice so reguire, representation may be provided for any financially eligible person who -

(A) . . .

(B) is seeking relief under section 2241, 2254, or 2255 of title 28.

18 U.S.C. § 3006A(a)(2)(B) (Supp. 1999). Chamblin demonstrated

his financial eligibility and filed his petition pursuant to

section 2241, and I previously found that the interests of

justice reguired an appointment in this case.

4 Relying on Perez-Perez v. Hanberrv,

(11th Cir.

1986), and citing a First Circuit decision that provides no

meaningful guidance on the issue,1 the Government's rejoinder is

that the CJA, 18 U.S.C. § 3006A(a)(2)(B), does not cover every

indigent petitioner seeking relief under section 2241. When

construed in light of its title, context, and legislative

history, according to the Government, the CJA provision covers

only petitioners challenging their criminal convictions or

sentences, not habeas petitioners such as Chamblin who are

challenging administrative detention decisions.

The Government has rehearsed these arguments before. It

lost in the most recent case to appear in the reporters, see

Saldina v. Thornburgh,

(D. Conn. 1991). Among

other things, the Saldina court concluded that the statutory

language means what it says and that it covers INS detainees

petitioning for habeas corpus:

The clear construction of this statute is that any indigent person seeking habeas corpus relief under the provisions of Title 28 is entitled to CJA representation when the interest of justice so reguires. This statute is not ambiguous, vague, or confusing. . . . Section 2241 provides relief for

1Romero Barcelo v. Brown,

, 461 n.4 (1st Cir. 1981) ("The Criminal Justice Act has no application to civil cases other than habeas petitions." (emphasis added))

5 prisoners in custody of the authority of the United States "in violation of the Constitution or laws or treaties of the United States." This remedy has never been viewed as available only to challenge criminal convictions. The canon of statutory construction is that Congress is presumed to understand the judicial background against which it legislates.

Saldina,

(citations omitted); see also

Connecticut Nat'l Bank v. Germain,

(1992)

(Congress is presumed to mean what it says when statutory

language is unambiguous); see generally Goncalves,

("Aliens in custody of federal immigration officials have

traditionally been able to obtain review of immigration decisions

by petitioning for a writ of habeas corpus under what is now §

2241."). I find Saldina persuasive.

In a portion of its brief littered with emphatic

underlining, the Government argues that the statutory language

does not authorize CJA appointments for all habeas petitioners,

despite the plain language. Notably, according to the

Government, it is part of the Criminal Justice Act, codified in

Title 18 ("Crimes and Criminal Procedure"), and contained within

section 3006A, entitled "Adeguate representation of defendants."

These factors are inconseguential.

"'[T]he title of a statute . . . cannot limit the plain

6 meaning of the text. For interpretive purposes, [it is] of use

only when [it] shed[s] light on some ambiguous word or phrase.'"

Pennsylvania Dep't of Corrections v. Yeskev,

(1998) (brackets and ellipsis in original) (guoting Trainmen v.

Baltimore & Ohio R. Co.,

(1947)). The

Government highlights no ambiguity in the phrase at issue:

"representation may be provided for any financially eligible

person who . . . is seeking relief under section 2241, 2254, or

2255 of title 28." Congress could have included restrictive

language in section 3006A to ensure that it would cover only

those petitioners challenging their convictions or sentences, but

it did not. The inclusion of the reference to section 2241 in

the statute conveys an intent to authorize CJA appointments for

habeas petitioners who, like INS petitioners, may not base their

claims on sections 2254 and 2255.

The Government's effort to create ambiguity from the context

loses force upon further inspection. The title of the provision,

"Adeguate representation of defendants," does not define its

scope. Section 3006A indisputably authorizes the appointment of

counsel for, among other things, such non-defendants as habeas

petitioners and persons in custody as material witnesses. See 18

0 6A(a)(1)(G); 3006A(a)(2)(B); see also H. Rep. No.

417, 99th Cong., 1st Sess. 13 (1985), reprinted in 1986

U.S.C.C.A.N. 6165, 6175 ("the word 'person' has been substituted

for the word 'defendant' in this subsection [ § 3006A(b)], and

elsewhere in the CJA, to reflect the fact that counsel may be

appointed for habeas petitioners and material witnesses as well

as for persons charged with a crime.").

The Government contends that the legislative history

reflects an intent to restrict CJA appointments to habeas

petitioners challenging their criminal convictions and sentences.

I disagree.

In the first place, courts must look primarily to statutory language, not to legislative history, in determining the meaning and scope of a statute. When a statute's text is encompassing, clear on its face, and productive of a plausible result, it is unnecessary to search for a different, contradictory meaning in the legislative record. . . .

In the second place, legislative history that is in itself inconclusive will rarely, if ever, overcome the words of a statute. . . . [A]n inguiring court, at most, should resort to legislative history only to determine "whether there is a 'clearly expressed legislative intention' contrary to [the statutory] language, which would reguire [the court] to guestion the strong presumption that Congress expresses its intent through the language it chooses."

Rhode Island v. Narragansett Indian Tribe,

, 697-98

8 (1st Cir. 1994) (citations omitted).

Even if it were appropriate to mine the legislative history

where the statutory language itself is unambiguous, nowhere in

the relevant cited legislative history is there a clearly

expressed intention contradictory to the plain language.

References to criminal defendants or criminal proceedings are

inconclusive and may simply reflect that prisoner petitions under

sections 2254 and 2255 comprise the vast majority of habeas

corpus petitions filed in federal court. See, e.g., S. Rep. No.

790, 91st Cong., 2d Sess. 1 (1970) (provision reworded to extend

coverage to "additional facets of the criminal trial process and

related proceedings").2

The Government specifically cites a portion of a House

report stating that habeas proceedings "have traditionally been

regarded as technically civil in nature rather than criminal," so

that "no right to appointed counsel has as yet been recognized

under the sixth amendment," and that the proceedings covered by

2Chamblin's case shows that a habeas corpus petition challenging administrative detention may also relate to a criminal trial: the administrative orders of detention and deportation were conseguences of Chamblin's criminal convictions, cf . United States v. Gonzalez,

, *5-*7 (1st Cir. Jan. 24, 2000) (deportation is collateral conseguence of guilty plea). the CJA "are intimately related to the criminal process." H.R.

Rep. No. 1546, 91st Cong., 2d Sess., reprinted in 1970

U.S.C.C.A.N. 3982, 3988. This passage does not evince a

legislative intent contrary to the plain language of the statute

when it is construed in context.

The passage appears with citations to two cases that did not

involve petitions for habeas corpus arising from criminal

convictions. See In re Gault,

(1967) (habeas

challenge to juvenile detention) & Johnson v. Avery,

(1969) (habeas corpus proceeding in which Court ruled that denial

of access to jailhouse lawyer constituted impairment of writ).

The cases are cited as matters involving the "deprivation of

personal liberty," in which "the distinction between civil and

criminal . . . has become increasingly obscure." The citation to

these cases and the reference to a deprivation of personal

liberty in this passage may indicate a legislative intent to

provide authority to appoint counsel in all cases which involve a

deprivation of personal liberty. See Saldina,

. In any event, the cited portion of the House report does

not clearly express a legislative intent contrary to the plain

language of the statute. See

10 The Government points out that an earlier form of section

3006A originally contained language, deleted in 1986, that

characterized the habeas petitioners eligible for CJA

appointments as persons "seeking collateral relief."

Specifically, section 3006A(a) formerly reguired district courts

to operate a plan to appoint counsel for persons "seeking

collateral relief, as provided in subsection (g)." Subsection

(g) formerly authorized appointments for indigent persons

"seeking relief under 2241, 2254, and 2255 of Title 28." The

Government, citing Perez-Perez, contends that (1) the inclusion

of the gualifying term "collateral relief" in the statute limited

the authority to make a CJA appointment for an INS detainee; and

(2) Congress's deletion of this language in a clarifying

amendment did not expand the authority under section 3006A.

There are several problems with the Government's argument

and its reliance on Perez-Perez. The term "person . . . seeking

collateral relief" does not plainly exclude INS detainees from

the fold of petitioners who may be appointed counsel under the

CJA. An INS detainee's petition may be functionally eguivalent

to a direct appeal, see Goncalves, but it remains properly

classified as a collateral challenge to the extent that there is

11 no right to appeal INS decisions directly to the district court,

see, e.g., Jurado-Gutierrez v. Greene,

(10th

Cir. 1999) (distinguishing between direct judicial review and

collateral relief available through habeas corpus petition of

aliens in deportation proceedings), petition for cert, filed. No.

99-7964 (Jan. 31, 2000) .

In any event, the term "collateral relief" is no longer part

of the relevant statute. Congress restructured the provision in

1986, deleted the term, and did not insert any gualification on

the scope of section 3006A(a)(2)(B). As noted by Saldina, the

reliance of the Perez-Perez decision on a term that is no longer

included in the statute "logically restricts application" of the

case. Saldina,

.

As noted by Saldina, Congress's characterization of the 1986

amendment as "for purposes of clarity only" does not add any

weight to the Government's argument:

Possibly Congress felt it necessary to clarify any conflicting interpretations of the phrase "collateral relief." By removing the phrase without substituting language restricting the appointment of counsel in habeas proceedings, one might infer that the [Perez-1 Perez interpretation was not the victorious version. Alternatively it is possible that the amendment was purely technical in nature, in which case. Congress, in direct contrast to the [Perez-1Perez court's analysis, obviously placed little or no significance on the

12 phrase "collateral relief."

Saldina,

.

As to the remainder of the Government's arguments, I fully

concur with Saldina. In countering the Government's contention

that appointing counsel under the CJA to INS detainees who are

petitioning for habeas corpus undermines Congress's intent not to

have the Government pay for counsel in INS administrative

hearings, Saldina effectively uses an analogy to the Social

Security review scheme.

Accordingly, I conclude that 18 U.S.C. § 3006A(a)(2)(B)

means what it says and thus authorizes the appointment of counsel

to represent INS detainees petitioning for writ of habeas corpus

under

.

B. CJA Statutory Cap

The CJA caps attorney's fees for habeas corpus

representation at $750.00. See 18 U.S.C. § 3006A(d)(2). The

court may award fees in excess of the cap when the representation

is extended or complex, if the court certifies that the amount of

the excess payment is necessary to provide fair compensation:

Payment in excess of any maximum amount provided . . . may be made for extended or complex representation whenever the court in which the representation was rendered . . . certifies that the amount of the excess

13 payment is necessary to provide fair compensation and the payment is approved by the chief judge of the circuit.

0 6A(d)(3).

Extended representation connotes a "substantial investment

of time," while " ' [c]omplex' representation refers to the

intricacies of the case and their corresponding call on counsel's

intellectual resources." United States v. Bailey,

(D.C. Cir. 1978). Only reasonably competent and productive

time is deserving of recompense under the CJA. See

;

accord United States v. Carnevale,

(D.R.I.

1985) .

This case reguired extended and complex representation under

these definitions. The matter involved a petition for writ of

habeas corpus brought by a legal resident alien seeking a hearing

on relief from deportation and release from custody pending the

outcome of the deportation process. There were a number of

factual and procedural complexities arising from the fact that

petitioner's case had been pending in the Immigration Court for

more than eight years, as well as resulting from petitioner's

voluminous pro se filings in this court and in the First Circuit

Court of Appeals. In addition, adeguate representation in the

14 habeas corpus case required counsel to pursue an administrative

petition for release from custody. The complex procedural and

factual issues are set forth more fully in counsel's memorandum

in support of his motion for excess fees.

Furthermore, the case involved complex legal issues, arising

from Congress's recent amendments to the immigration laws.

Parsing through the applicable provisions was no easy task. The

issues related to matters pending before the United States

Supreme Court at the time that they were briefed in this court,

see, e.g., Goncalves v. INS,

(1st Cir. 1998), cert.

denied, 119 S. C t . 1141 (1999), as well as a controversial

statutory provision on which scant case law existed at the time:

the constitutionality of the mandatory detention law for certain

classes of deportable aliens. Among other things, I note that

the INS itself had difficulty construing the relevant statutory

and regulatory provisions, since revised its interpretation of a

relevant statute,

, to permit Chamblin to be

released after I issued a Report and Recommendation in Chamblin's

favor.

Throughout the course of his representation of petitioner,

counsel did a fine job of handling a factually and procedurally

15 complex matter and elucidating intricate, evolving issues in

immigration law. The time expended by his office (more than 200

hours over ten months) was spent productively and effectively.

The Government cites to no specific cost entry or fee entry that

is otherwise objectionable.

____________________________ Conclusion

For the foregoing reasons, the motion for attorney's fees in

excess of the statutory limit (document no. 47) should be

granted, and the excess payment should be certified for payment

to the chief judge of the circuit, as necessary to fairly

compensate counsel for extended and complex representation.

Any objections to this Report and Recommendation must be

filed within ten days of receipt of this notice. Failure to file

an objection within the specified time waives the right to appeal

the district court's order. See Unauthorized Practice of Law

Committee v. Gordon,

(1st Cir. 1992); United

States v. Valencia-Copete,

(1st Cir. 1986) .

James R. Muirhead United States Magistrate Judge

Date: February 28, 2000

16 cc: Steven M. Gordon, Esq. Peter E. Papps, Esq. Thankful T. Vanderstar, Esq.

17