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DRAKES v. I.N.S.
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.
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
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).
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