Drakes v. I.N.S.

• Decision Date: 03 June 2003
• Docket Number: No. 02-2886.,02-2886.
• Citation: 330 F.3d 600
• Parties: Trevor DRAKES, Appellant v. IMMIGRATION AND NATURALIZATION SERVICE.
• Court: U.S. Court of Appeals — Third Circuit

330 F.3d 600

Trevor DRAKES, Appellant v. IMMIGRATION AND NATURALIZATION SERVICE.

No. 02-2886.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) May 22, 2003.

Filed June 3, 2003.

James V. Wade, Federal Public Defender for the Middle District of Pennsylvania, Daniel I. Siegel, Assistant Federal Public Defender, Harrisburg, PA, for Appellant.

Thomas A. Marino, United States Attorney, Kate L. Mershimer, Assistant United States Attorney, United States Attorney's Office, Harrisburg, PA, for Appellee.

Before SCIRICA, Chief Judge, SLOVITER and NYGAARD, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Trevor Drakes appeals from the District Court's order dismissing his petition for habeas corpus pursuant to 28 U.S.C. § 2241. The District Court held that a petitioner under section 2241 may not collaterally challenge the constitutionality of the underlying state conviction that was the basis for the Board of Immigration Appeals' ("BIA") order of removal. Drakes v. INS, 205 F.Supp.2d 385 (M.D. Pa.2002). We will affirm.

I. FACTS AND PROCEDURAL HISTORY

On August 12, 1998, Drakes, a native of Guyana, was stopped by the Delaware State Police for a traffic violation.¹ He signed a number of traffic tickets using a false name and was charged with forgery and related offenses. Following his arrest, Drakes was unable to make bail and remained in custody for six and a half months. Pet.'s Br. at 4.

On March 2, 1999, while represented by counsel, Drakes pled guilty in Delaware state court to two counts of second-degree forgery. He concedes that he signed a plea agreement and that the agreement contained language warning him that his plea could be grounds for removal. Pet.'s Br. at 5. Drakes was sentenced to two years of imprisonment, which was suspended for time served, followed by two years of probation. Drakes did not challenge any aspect of the proceedings on direct appeal.

On March 4, 1999, as a result of his forgery convictions, the Immigration and Naturalization Service ("INS") initiated removal proceedings by issuing Drakes a Notice to Appear. In the Notice to Appear, the INS charged Drakes with being a deportable alien because his convictions for second-degree forgery constituted aggravated felonies under the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."). As such, the INS took him into custody.

On May 10, 1999, an Immigration Judge ("IJ") terminated the removal proceedings, ruling that Drakes's convictions did not satisfy the statutory definition of "aggravated felony." The INS appealed to the BIA which reversed the IJ's decision and held that Drakes's offense constituted an aggravated felony for removal purposes. On February 10, 2000, the BIA ordered that Drakes be removed to Guyana. Drakes then filed a petition for review with this court challenging the BIA's decision. On February 20, 2001, we upheld the BIA's decision that the Delaware forgery convictions constituted aggravated felonies for the purposes of removal and dismissed Drakes's petition for lack of jurisdiction. See Drakes v. Zimski, 240 F.3d 246, 251 (3d Cir.2001).

In November 1999, while he was in INS custody pending the resolution of the INS' appeal to the BIA, Drakes moved for post-conviction relief in Delaware state court. At that time, his state sentence had effectively ended as he was discharged from probation on August 3, 1999. The Delaware state court denied the motion on the ground that Drakes was no longer in Delaware state custody. See State v. Drakes, 1999 WL 1222689, at *1 (Del.Super.Ct. Dec.8, 1999).

Drakes, proceeding pro se, then filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 claiming that his two Delaware convictions violated the constitution and seeking release from INS custody. On September 20, 2000, after the District Court granted Drakes's motion for appointment of counsel, Drakes filed an amended section 2241 habeas petition.² In his amended petition, Drakes again challenges the constitutionality of his Delaware convictions which the INS used to secure the order of his removal. Specifically, Drakes alleges that he received ineffective assistance of counsel, he did not enter his guilty plea knowingly and intelligently, and his rights under the Vienna Convention on Consular Relations were violated because he did not receive notice of his right to contact his consulate. App. at 8-11.

The District Court granted the INS' motion to hold briefing in abeyance pending this court's resolution of Drakes's petition for review of the removal order (raising the issue of whether a Delaware conviction for forgery constituted an aggravated felony)³ and the Supreme Court's decisions in Daniels and Coss, cases bearing on the question of whether a prisoner in a habeas proceeding or motion to vacate sentence could collaterally attack an expired state conviction used to enhance his or her sentence. On April 25, 2001, the Supreme Court issued opinions in Daniels v. United States, 532 U.S. 374, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001), and Lackawanna County District Attorney v. Coss, 532 U.S. 394, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001). Based on these decisions, the INS moved to dismiss Drakes's habeas petition.

On June 3, 2002, the District Court granted that motion and dismissed Drakes's habeas corpus petition, finding that he did not have the right to challenge the constitutionality of his prior state convictions. Drakes timely appealed.

II. DISCUSSION

On appeal, Drakes contends that the District Court erred in holding that he was barred in a habeas proceeding from challenging the constitutionality of prior state convictions used to support his removal from the United States. Pet.'s Br. at 10. We have jurisdiction to review a district court's final order pursuant to 28 U.S.C. § 1291. Our review of a district court's legal conclusions is plenary. Young v. Vaughn, 83 F.3d 72, 75 (3d Cir.1996).

We have not previously decided the issue of whether a habeas petitioner may challenge the constitutionality of a prior state conviction that provides the basis for an order of removal. However, the District Court's disposition of the issue has ample support. In Giammario v. Hurney, 311 F.2d 285, 287 (3d Cir.1962), we held, in the context of a petition for review of a BIA order, that a petitioner could not challenge his underlying conviction even though it was the basis for the BIA's order of deportation.

Likewise, in Custis v. United States, 511 U.S. 485, 487, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), the Supreme Court held that a defendant in a federal sentencing proceeding may not collaterally attack the validity of a prior state conviction used to enhance his or her sentence under the Armed Career Criminal Act of 1984 ("ACCA"). Thereafter, the Supreme Court extended the Custis holding to cover petitioners pursuing a habeas petition or a motion to vacate sentence, holding that a petitioner may not challenge, with narrow exceptions, a prior conviction that is used to enhance his or her current sentence. Daniels, 532 U.S. at 382, 121 S.Ct. 1578; Coss, 532 U.S. at 396-97, 121 S.Ct. 1567. Although Daniels and Coss arose in the context of petitioners challenging their sentencing enhancements, rather than challenging an order of removal, the Supreme Court's analysis and reasoning apply equally here.

In Daniels, the defendant was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Based on prior convictions, his sentence was enhanced under the ACCA, which imposes a mandatory minimum 15-year sentence on anyone who violates 18 U.S.C. § 922(g)(1) and has three prior convictions for a violent felony or a serious drug offense. After an unsuccessful direct appeal, Daniels moved for relief under 28 U.S.C. § 2255, alleging that two of his prior convictions were unconstitutional because they were based on guilty pleas that were not knowing and voluntary and because one conviction was the product of ineffective assistance of counsel. The Supreme Court 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 while they were available (or because the defendant did so unsuccessfully), then that defendant is without recourse." Daniels, 532 U.S. at 382, 121 S.Ct. 1578. Otherwise, "we would effectively permit challenges far too stale to be brought in their own right, and sanction an end run around statutes of limitations and other procedural barriers that would preclude the movant from attacking the prior conviction directly." Id. at 383, 121 S.Ct. 1578.

Similarly, in Coss a state prisoner who filed a petition for a writ for habeas corpus pursuant to 28 U.S.C. § 2254 contended that his prior convictions — i.e. the ones that he had already served, but that influenced the calculation of his current sentence — were the product of ineffective assistance of counsel. In extending its decision in Daniels to cover section 2254 petitioners, the Supreme Court stated:

Accordingly, as in Daniels, we hold that once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. [citation omitted]. If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained.

Coss, 532 U.S. at 403-04, 121 S.Ct. 1567.⁴

The Supreme Court grounded its holdings in Daniels and Coss primarily on "considerations relating to the need for finality of convictions...