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June 3, 2002


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 amended petition.


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) (citation omitted).
"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).
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 ยง 2241 petition by filing a motion under ...

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