United States District Court, Middle District of Pennsylvania
June 3, 2002
TREVOR DRAKES, PETITIONER
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.
The opinion of the court was delivered by: James F. McCLURE, Jr., United States District Court Judge.
O R D E R
Trevor Drakes is a criminal alien subject to a final order of removal.
Leading to his removal order were two state convictions for forgery.
Drakes has filed with this court an amended petition under
28 U.S.C. § 2241 for a writ of habeas corpus. In his amended
petition, Drakes challenges his removal order by seeking to invalidate the
state convictions. The Immigration and Naturalization Service (INS) has
moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the
amended petition. According to the INS, two recent Supreme Court cases
command that an alien in Drakes's position may not, under § 2241,
challenge a removal order by contesting the legality of an underlying
state conviction. We agree with the INS, and we will dismiss Drakes's
I. STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) admits the well-pleaded
allegations of the complaint but denies their legal sufficiency.
Hospital Building Co. v. Trustees of the Rex Hospital, 425 U.S. 738, 740
(1976). In reviewing a motion to dismiss under 12(b)(6), the court must
accept as true all factual allegations of the complaint and draw all
reasonable inferences in the light most favorable to the plaintiff.
Board of Trustees of Bricklayers and Allied Craftsmen Local 6 of New
Jersey v. Wettlin
Assoc., Inc., 237 F.3d 270, 272 (3d Cir. 2001)
"A court may dismiss a complaint only if it is clear that no relief
could be granted under any set of facts that could be proven consistent
with the allegations." Ramadan v. Chase Manhattan Corp., 229 F.3d 194,
195-96 (3d Cir. 2000) (citing Alexander v. Whitman, 114 F.3d 1392, 1398
(3d Cir. 1997)). "The issue [under Rule 12(b)(6)] is not whether a
plaintiff will ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims." Maio v. Aetna, Inc., 221 F.3d 472,
482 (3d Cir. 2000) (citations and internal quotation marks omitted).
II. FACTS AND PROCEDURAL HISTORY
Drakes, a native of Guyana, has lived in the United States since 1981.
On August 12, 1998, Drakes was stopped by a Delaware State Police officer
for a traffic violation. Upon signing a number of traffic tickets, he
provided the police with a false name. At the time Drakes was stopped, he
was a lawful permanent resident of the United States.
On March 2, 1999, Drakes pleaded guilty in Delaware state court to two
counts of second-degree forgery. The Delaware trial court sentenced
Drakes to two years' imprisonment, suspended for time served, followed by
two years of probation.
On March 4, 1999, while Drakes was on state probation, the INS
initiated removal proceedings by issuing Drakes a Notice To Appear. The
Notice to Appear charged Drakes with being a deportable alien by virtue
of his having committed the Delaware forgery, which was considered to be
an aggravated felony. A few days later, he was taken to the York County
Prison, where he was incarcerated by the INS.
On May 10, 1999, the immigration judge terminated the removal
proceedings, ruling that Drakes's crime did not satisfy the statutory
definition of "aggravated felony." The INS appealed to the Board of
Immigration Appeals (Board). Finding that Drakes's offense did in fact
constitute an aggravated felony for removal purposes, the Board reversed
the immigration judge's decision and ordered that Drakes be removed to
Guyana. Drakes filed with the Third Circuit a petition for review
challenging the Board's decision. The Third Circuit agreed with the
Board that Drakes committed an aggravated felony, and it dismissed
Drakes's petition. Drakes v. Zimski, 240 F.3d 246, [242 F.3d 246,] 251
(3d Cir. 2001). The INS's removal order stands today.
On August 3, 1999, after Drakes had been in INS custody for
approximately five months, Drakes was discharged from probation,
effectively ending his state sentence. (Criminal Docket at 2,
Petitioner's Exhibit A, Rec. Doc. No. 22.) On December 8, 1999, which
was after he completed his state sentence and during the time that he was
in federal custody pending his immigration proceedings, Drakes filed with
the Delaware state court a motion for postconviction relief. The
Delaware court denied the motion on the grounds that Drakes was no longer
in Delaware state custody. State v. Drakes, Nos. IK-98-09-0059-R1,
IK-98-09-0061-R1, 1999 WL 1222689, at *1 (Del.Super. December 8, 1999).
After having counsel appointed, Drakes filed the instant amended
petition with this court. Drakes's amended petition challenges the
legality of his underlying Delaware convictions. We directed the INS to
address the question of whether we had jurisdiction under § 2241 to
consider a collateral challenge to Drakes's state convictions. After
procedural delays pending
the Third Circuit's review of the Board's
decision on the classification of Drakes's crimes, the INS responded to
Drakes's § 2241 petition by filing a motion under Federal Rule of
Civil Procedure 12(b)(6) to dismiss the amended petition. Drakes did not
file a brief responsive to the 12(b)(6) motion.
Section 2241 grants district courts jurisdiction to issue writs of
habeas corpus in response to a petition from a state or federal prisoner
who "is in custody in violation of the Constitution or laws or treaties
of the United States." 28 U.S.C. § 2241(a) and (c)(3).
The Immigration and Naturalization Act (INA) provides that an alien
convicted of an "aggravated felony" at any time after admission is
deportable. INA § 241(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii);
see also Drakes, 240 F.3d at 248. In its decision reviewing the Board's
removal order, the Third Circuit determined that Drakes did indeed commit
an aggravated felony that rendered him deportable. Drakes, 240 F.3d at
While Drakes does not — and cannot now — dispute that the
state forgery offenses are properly characterized as aggravated
felonies, he challenges his status as a removable alien by contending
that the Delaware forgery convictions were obtained in violation of
federal law. Specifically, he asserts that his state criminal
proceedings were encumbered by the following three defects: (1) he
received ineffective assistance of counsel; (2) his guilty plea was not
knowing or intelligent; and (3) his rights under the Vienna Convention on
Consular Relations were violated. We note that a federal district court
generally has jurisdiction to review a § 2241 petition such as
Drakes's. Immigration and Naturalization Service v. Cyr, 533 U.S. 289,
314 (2001). The INS contends, however, that two recent Supreme Court
cases command that an alien in Drakes's position may not, under §
2241, challenge a removal order by contesting the legality of an
underlying state conviction. The INS points out that Drakes seeks to
invalidate his removal order by challenging the legality of his state
forgery sentences, and it asserts that a § 2241 petitioner in this
situation is without a remedy.
The Supreme Court cases cited by the INS are Daniels v. United States,
532 U.S. 374 (2001) and its companion case, Lackawanna County District
Attorney v. Coss, 542 U.S. 394 [532 U.S. 394,] (2001). Both cases
featured a prisoner attempting to use collateral-review procedures to
invalidate previous state convictions that enhanced the sentence that
he was currently serving.
In Daniels, the defendant was convicted under 18 U.S.C. § 922(g)(1)
of being a felon in possession of a firearm. Based on his prior state
convictions, the defendant was determined to be an armed career
criminal, and his sentence was enhanced under a statute that imposed a
mandatory minimum sentence on anyone who violates § 922(g)(1) and has
three previous violent felony convictions. After an unsuccessful direct
appeal, the defendant sought relief under 28 U.S.C. § 2255, alleging
that two of the prior state convictions were unconstitutional. According
to the defendant, his convictions were obtained as a result of inadequate
guilty pleas and ineffective assistance of counsel.
In Coss, a state prisoner filed an application for a writ of habeas
corpus under 28 U.S.C. § 2254. He contended that certain prior state
convictions — i.e., ones that he had already served but that had
the calculation of his current sentence — were products
of ineffective assistance of counsel.
In Daniels and Coss, the court addressed to what extent a § 2254 or
§ 2255 movant may challenge a current sentence on the grounds that a
prior conviction used to enhance the current sentence was illegally
obtained. Addressing the issue in the context of § 2255, the Court
in Daniels held that "[i]f a prior conviction used to enhance a federal
sentence is no longer open to direct or collateral attack in its own
right because the defendant failed to pursue those remedies (or because
the defendant did so unsuccessfully), then the defendant is without
recourse." Daniels, 532 U.S. at 382. Modifying this statement, the Court
ruled that "[t]he presumption of validity that attached to the prior
conviction at the time of sentencing is conclusive, and the defendant may
not collaterally attack his prior conviction through a motion under
§ 2255." Id. In Coss, the Court simply expanded this holding "to
cover § 2254 petitions directed at enhanced state sentences." Coss,
532 U.S. at 402.
The Court based its decisions primarily on two policy considerations:
"finality of convictions and ease of administration." Id.
The Court first addressed the interest of final judgments. It noted
that a state prisoner has the opportunity for review in multiple
proceedings, including direct appeal, state postconviction review, and
federal habeas relief under § 2254. Id. at 402-403. It emphasized,
however, that "these vehicles for review . . . are not available
indefinitely and without limitation." Daniels, 532 U.S. at 381. It
cited the fact that the prisoner could possibly procedurally default his
claim or fail to prove a constitutional violation, and it stated that
"[i]n each of these situations, the defendant's conviction becomes final
and the State that secured the conviction obtains a strong interest in
preserving the integrity of the judgment." Coss, 532 U.S. at 403.
The Court also cited as an additional policy "the ease of
administration of challenges to expired state convictions." Id.
According to the Court, if prisoners would be allowed to challenge
collaterally prior convictions in these circumstances, courts would be
forced to consult "frequently nonexistent or difficult-to-obtain
state-court transcripts or records." Daniels, 532 U.S. at 378.
The Court noted two exceptions to its new rule. First, it made clear
that a defendant may challenge the prior conviction where the Sixth
Amendment was violated by a failure to appoint counsel. Id. at 382;
Coss, 532 U.S. at 404.
Second, it suggested — but expressly declined to carve out
— an exception in "rare cases in which no channel of review was
actually available to a defendant with respect to a prior conviction, due
to no fault of his own." Daniels; 532 U.S. at 384, accord Coss, 532
U.S. at 405-406.
Daniels and Coss control the disposition of Drakes's petition. In a
situation analogous to those of the defendants in Daniel and Coss, Drakes
is seeking to challenge his removal order by arguing the illegality of
previous state convictions. As with the defendants in Daniel and Coss,
Drakes had the opportunity to challenge his state convictions. He did not
file a timely direct appeal, and by the time he filed his motion for state
postconviction relief, he was finished serving the state sentence, and thus
his motion was untimely. See Drakes, 1999 WL 1222689, at *1. In addition
to failing to utilize his opportunity to benefit from Delaware's
postconviction procedures, he missed his chance to file a
§ 2254 petition with a federal court. Drakes failed to take advantage
of available postconviction remedies, and the forgery convictions are no
longer in their own right open to direct or collateral attack. In these
circumstances, he is "without recourse."
Drakes is not subject to either of the Court's articulated exceptions.
First, he was represented by counsel throughout his state-court criminal
Second, as stated, his situation was not such that he was unable,
through no fault of his own, to challenge his state convictions.
Rather, there was a five-month window in which he could have sought
review of the Delaware proceedings.
We realize that while Daniels and Coss addressed submissions under
§ 2255 and § 2254 and dealt with challenges only to extra time in
a prison sentence, we in this case are considering a petition filed under
§ 2241 and are analyzing a challenge to a final order of
deportation, a sanction that may well be deemed more severe than an
enhancement of a prison sentence.
The reasons for and against allowing the type of challenge Drakes makes
in the instant case were thoroughly discussed in Taveras-Lopez v. Reno,
127 F. Supp.2d 598 (M.D.Pa. 2000), a case decided before the Supreme
Court issued its rulings in Daniels and Coss. Taveras-Lopez involved a
§ 2241 petitioner who was being deported based on an expired state
The Taveras-Lopez court began by setting forth three "compelling
reasons" against allowing a challenge to a removal-causing expired state
conviction. Id. at 603. First, it cited the "strong interest in the
finality of convictions." Id. Second, it pointed out that the
respondent of a § 2241 petition is the INS, not the state attorney
who prosecuted the petitioner. Accordingly, a collateral attack on an
expired state conviction would require the involvement of the state
prosecutors, who in many cases would have no interest in vindicating a
conviction for which the sentence was already served. Without the state
prosecutors defending their convictions, "[c]ongressional policy to remove
from the United States those who have committed serious crimes may thus
be thwarted." Id. Third, it stated that by allowing § 2241 to be
the avenue for a collateral challenge to an underlying state-court
conviction, "the strong congressional interest in streamlining the
removal process would be circumvented." Id.
The court next noted that "[t]here are . . . countervailing
considerations." Id. First, it pointed out that "[d]eportation is a
drastic sanction," describing it as "at times equivalent of banishment or
exile." Id. (quoting Wallace v. Reno, 24 F. Supp.2d 104, 112 (D.Mass.
1998) (internal quotation marks omitted). It stated that "[c]ourts
should be reluctant to permit the bare fact of conviction to result in
removal where there may not have been an opportunity to mount an attack
on a constitutionally-suspect conviction." According to the court, this
premise "may be especially true where . . . a guilty plea results in a
short sentence, one which a person could view as a benefit while not
taking into account the consequence of deportation lurking in the
background." Id. at 603-604. Continuing this thought, it remarked that
"[a] lawful permanent resident alien . . . convicted of a crime carrying
a relatively short sentence followed by a lifetime banishment from the
United States, should not lightly be denied" an opportunity to test in
federal court the constitutionality of his conviction. Id. at 604.
While Taveras-Lopez raises some valid points, we reemphasize that it
was decided before Daniels and Coss. We believe that Daniels and Coss
dictate that Drakes may not successfully make the challenge he attempts.
Drakes's case invokes the interests that were present in Daniels and
Coss. The State of Delaware has an interest in preserving the finality
of Drakes's forgery convictions, and this court should not be burdened
with trying to locate obscure documents associated with Delaware's state
Further, as underscored in Taveras-Lopez, Delaware's state prosecutors
may not have an interest in defending Drakes's expired state conviction,
and allowing Drakes to challenge his Delaware conviction during federal
immigration proceedings would undermine Congress's goal of expeditiously
removing criminal aliens. The state prosecutors are not the respondents
in this case.
The reasons cited in Taveras-Lopez in favor of allowing a Drakes-type
challenge are inapplicable here. While Drakes may have had a short state
sentence, he was in INS custody during the time that his state
probationary sentence was still in effect. Certainly, he was then aware
that deportation was a possible, and, indeed, a highly likely consequence
of his crime, but he failed to take advantage of the postconviction
remedies available to him.
We see no reason why the teachings of Daniels and Coss should not apply
with equal force to the instant case. While the Third Circuit has not
yet addressed the issue, at least one other district court within the
Third Circuit has extended the holdings of Daniels and Coss to § 2241
petitions filed by removable aliens. Neyor v. INS, 155 F. Supp.2d 127,
138 (D.N.J. 2001). We hold likewise.
Drakes's § 2241 petition presents a collateral challenge to state
convictions that are not in their own right subject to collateral
review. Based on Daniels and Coss, Drakes is without a remedy.
NOW, THEREFORE, IT IS ORDERED THAT:
1. The INS's motion to dismiss (Rec. Doc. No. 31) is granted.
2. Drakes's amended petition for a writ of habeas corpus is dismissed.
3. The clerk is directed to close the case file.
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