Trevor Drakes v. Immigration and Naturalization Service

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 seconddegree
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 seconddegree
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 (2001),
and Lackawanna County District Attorney v. Coss, 532 U.S.
394 (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. App. at 31-40. 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
(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; Coss, 532 U.S. at 396-
97. 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. 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.

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.

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