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Livingston v. United States

United States District Court, District of Delaware

April 1, 2014

DONOVAN A. LIVINGSTON, Movant/Defendant,
v.
UNITED STATES OF AMERICA, Respondent/Plaintiff. Civ. No. 11-1247-SLR

Donovan A. Livingston. Pro se movant.

Shannon Thee Hanson. Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Counsel for respondent.

MEMORANDUM OPINION

ROBINSON, District Judge

I. INTRODUCTION

Donovan A. Livingston ("movant") is a federal inmate currently confined at the Adams County Correctional Institution in Natchez, Mississippi. Movant timely filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (D.I. 77) The government filed an answer in opposition. (D.I. 90) For the reasons discussed, the court will deny movant's § 2255 motion without holding an evidentiary hearing.

II. BACKGROUND

Movant was born in Jamaica in 1961 and is a citizen of Jamaica. His mother is Cislyn Rowe Livingston. His biological father is not listed on his birth certificate. (D.I. 90 at 2)

In 1969, movant's mother married Herman Taylor, who was a United States citizen by birth. On or about September 26, 1976, at the age of fifteen, movant was admitted into the United States as a lawful permanent resident. On October 26, 1979, when movant was more than eighteen years of age, his mother completed an application to become a naturalized United States citizen. Movant's mother became a naturalized United States citizen on December 17, 1979. Id.

Between 1985 and 1990, movant was convicted of numerous criminal offenses in the State of Delaware, including: (1) carrying a concealed dangerous instrument, in violation of 11 Del. Code § 1442; (2) receiving stolen property, in violation of 11 Del. Code § 851; and (3) robbery, in violation of 11 Del. Code § 832. As a result, on August 1, 1994, the Immigration and Nationalization Service issued an order to show cause and notice of hearing charging that movant was subject to deportation; a "warrant for arrest of alien" was issued that same day. On October 17, 1994, movant was personally served with the order to show cause and taken into custody, and then released from custody on a $15, 000 bond. Id.

Movant hired an attorney, Christina Aborlleile, Esquire, and requested a redetermination of bond. On January 10, 1995, notice was sent to Ms. Aborlleile that movant's deportation hearing was scheduled for June 15, 1995. On June 14, 1995, one day prior to the hearing, Ms. Aborlleile filed a motion to withdraw as counsel, asserting that movant had not responded to her correspondence regarding continued representation. She did not send a copy of the motion to movant. Id. at 3.

On June 15, 1995, the Immigration Judge granted Ms. Aborlleile's motion to withdraw as counsel. Movant did not appear at the June 15, 1995 hearing. At the request of the government, movant's deportation hearing was conducted in absentia. Based in part on a finding that movant had not made any application for relief from deportation, the Immigration Judge ordered movant deported. Id.

Prior to his deportation, movant obtained new counsel, Kenneth Kitay, Esquire, and filed both a motion to reopen the deportation proceedings and a motion to stay the deportation. On November 1, 1995, before those motions were addressed by the Immigration Judge, Mr. Kitay filed a motion to withdraw movant's motion to reopen the order of deportation and a motion to withdraw the motion for stay of deportation. Mr. Kitay also filed a motion for execution of the June 15, 1995 deportation order, stating that: (1) movant's rights in the deportation proceeding had been explained to him; (2) movant understood he was voluntarily waiving any right to examine the evidence against him or to present evidence on his own behalf; (3) movant conceded he was deportable; and (4) he waived any rights that he may have had to apply for relief from deportation. On November 2, 1995, the Immigration Judge granted the motion for execution of the June 15, 1995 deportation order. Movant was deported to Jamaica on November 11, 1995. Id. at 3-4.

Testimony from movant's trial established that movant re-entered the United States illegally in late 1998 or early 1999. On January 11, 1999, movant came into contact with law enforcement officers and was temporarily detained. The officers who detained movant suspected he was not a United States citizen and called Immigration and Naturalization Service Special Agent Christopher Kudless. Special Agent Kudless spoke to movant by phone, at which time movant identified himself as "Darnell Robinson." Movant was released from custody based on this statement of false identity. Id. at 4.

On or about January 15, 1999, Special Agent Kudless received a copy of fingerprints that had been taken from "Darnell Robinson." After sending the fingerprints to the Federal Bureau of Investigation ("FBI") Special Processing Unit, Special Agent Kudless learned for the first time that the fingerprints matched movant's fingerprints. Special Agent Kudless then reviewed the FBI records and learned that movant had previously been deported from the United States. Id.

In August 1999, while still at large, movant was indicted for illegal entry after deportation. On or about March 13, 2000, FBI Special Agent Scott Duffey, who at the time was a member of a fugitive task force, opened an investigation to locate and apprehend movant. Initially, Special Agent Duffey ran movant's information through several databases to see if movant had applied for any credit or had listed any addresses. Those efforts were unsuccessful. Id. at 4-5.

Special Agent Duffey began to conduct surveillance on addresses of movant's known acquaintances. Around March 2003, Special Agent Duffey learned that a woman named Vanessa Reid was movant's close friend. Special Agent Duffey obtained a search warrant for Ms. Reid's apartment in an attempt to locate and apprehend movant. Ms. Reid was present at the time of the search. Special Agent Duffey informed Ms. Reid that movant was wanted and that the fugitive task force would not stop looking, and asked her several questions about movant's whereabouts. Special Agent Duffey also provided Ms. Reid with his cell phone number. Id. at 5.

Soon thereafter, Special Agent Duffey received a call on his cell phone from a blocked telephone number. The male caller spoke with a Jamaican accent and told Special Agent Duffey to stay away from Ms. Reid. Suspecting that the caller was movant, Special Agent Duffey told movant that he was wanted for state and federal violations and urged him to surrender. Special Agent Duffey subsequently spoke to movant numerous times, became very familiar with movant's voice and, therefore, was certain that the person who called him in March 2003 was movant. Id.

Special Agent Duffey spoke to movant on the phone approximately twelve times between March 2003 and November 2007. Movant always initiated the calls and, except for one occasion, called from a blocked telephone number. Every time Special Agent Duffey spoke with movant he informed movant that he was wanted by law enforcement and asked him to turn himself in. Movant always refused. Special Agent Duffey also tried unsuccessfully to get movant to reveal clues about his location. Movant told Special Agent Duffey that he would not meet with him face-to-face because he was afraid that Special Agent Duffey would lock him up. Id.

In 2006, the 1999 illegal re-entry indictment was dismissed "in the interests of justice." Id. At that time, movant had been a fugitive for approximately seven years. Id.

Around November 23, 2007, Special Agent Duffey received a call on his cell phone from a Nassau County, New York, law enforcement official. The official told Special Agent Duffey that he had arrested an individual named Don Johnson and that Special Agent Duffey's phone number was saved in the individual's cell phone. Special Agent Duffey could hear the arrested individual speaking in the background and realized that the voice of the individual who called himself "Don Johnson" was actually movant. Special Agent Duffey instructed the official not to release movant. A few months ...


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