                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-3-2003

Drakes v. INS
Precedential or Non-Precedential: Precedential

Docket No. 02-2886




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                          PRECEDENTIAL

                                     Filed June 3, 2003

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                    No. 02-2886


                 TREVOR DRAKES,
                                    Appellant
                         v.
   IMMIGRATION AND NATURALIZATION SERVICE

   On Appeal from the United States District Court
       for the Middle District of Pennsylvania
              (D.C. Civil No. 00-cv-00499)
     District Judge: Hon. James F. McClure, Jr.

      Submitted Under Third Circuit LAR 34.1(a)
                   May 22, 2003
Before: SCIRICA, Chief Judge, SLOVITER and NYGAARD,
                     Circuit Judges

                (Filed: June 3, 2003)

                   James V. Wade, Esquire
                    Federal Public Defender for the
                    Middle District of Pennsylvania
                   Daniel I. Siegel, Esquire
                    Assistant Federal Public Defender
                   Harrisburg, PA 17101
                     Attorneys for Appellant
                                 2


                         Thomas A. Marino
                          United States Attorney
                         Kate L. Mershimer
                          Assistant United States Attorney
                         United States Attorney’s Office
                         Harrisburg, PA 17108-1754
                           Attorneys for Appellee


                  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. App. at 27 (Drakes v. INS, No. 4: CV-00-
0499, slip op. at 1 (M.D. Pa. June 3, 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.

1. Drakes was a lawful permanent resident of the United States at the
time he was stopped.
                              3


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
                                 4


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.

2. In his first petition, Drakes named the State of Delaware as
respondent. In his amended petition, however, Drakes named the INS as
respondent. App. at 7.
3. As previously noted, this court thereafter ruled that Drakes’s
convictions constituted aggravated felonies for purposes of removal.
Drakes, 240 F.3d at 248-51.
                              5


                              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
                              6


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.
                                 7


Coss, 532 U.S. at 403-04.4
   The Supreme Court grounded its holdings in Daniels and
Coss primarily on “considerations relating to the need for
finality of convictions and ease of administration.” Id. at
402. First, the Supreme Court recognized that although a
state court conviction is subject to review in multiple
forums, i.e. on direct appeal, state post-conviction review,
and habeas review, “[t]hese vehicles for review . . . are not
available indefinitely and without limitation.” Daniels, 532
U.S. at 381. Once a conviction becomes final, “the State
that secured the conviction obtains a strong interest in
preserving the integrity of the judgment.” Coss, 532 U.S. at
403. As the Supreme Court summarized, “[o]ne of the
principles vindicated by these limitations is a ‘presumption
deeply rooted in our jurisprudence: the ‘presumption of
regularity’ that attaches to final judgments, even when the
question is waiver of constitutional rights.’ ” Daniels, 532
U.S. at 381 (quoting Parke v. Raley, 506 U.S. 20, 29
(1992)).
  Second, the Supreme Court reasoned that the need for
ease of administration requires the limitation of collateral
review of expired state convictions. Coss, 532 U.S. at 403.
The Supreme Court stated,
     Federal courts sitting in habeas jurisdiction must
     consult state court records and transcripts to ensure
     that challenged convictions were obtained in a manner
     consistent with constitutional demands. As time
     passes, and certainly once a state sentence has been
     served to completion, the likelihood that trial records
     will be retained by the local courts and will be
     accessible for review diminishes substantially.
Id. (citation omitted). Even though a district court has the
capability    of   evaluating   constitutional   challenges,
“institutional competence does not make decades-old state

4. It should be noted that in Coss, the Supreme Court reversed this
court’s en banc opinion allowing a habeas petitioner to challenge his
prior state convictions when they were used to enhance his current
sentence. See Coss v. Lackawanna County Dist. Attorney, 204 F.3d 453
(3d Cir. 2000) (en banc), rev’d, 532 U.S. 394.
                                     8


court records and transcripts any easier to locate.” Daniels,
532 U.S. at 379.
   Applying this analysis here, the District Court correctly
ruled that Daniels and Coss control the disposition of
Drakes’s habeas petition. Like Daniels and Coss, Drakes,
who had an opportunity to challenge his state convictions,
is now seeking to challenge his removal order by arguing
the illegality of his prior state convictions. Drakes failed to
file a direct appeal, and his attempt to file a state post-
conviction challenge was unsuccessful on state law
grounds. His forgery convictions are no longer in their own
right open to direct or collateral attack.5 Thus, Drakes is
without recourse.
   Although Daniels and Coss dealt with submissions under
sections 2255 and 2254, and as such dealt with challenges
to an enhanced prison sentence, the Supreme Court’s
reasoning is equally applicable to the present situation.
There is no meaningful difference between a collateral
attack on an expired state conviction underlying removal
proceedings and a collateral attack on an expired state
criminal conviction underlying an enhanced sentence.6 See
Contreras v. Schiltgen, 122 F.3d 30, 31-32 (9th Cir. 1997),
rehearing granted, 151 F.3d 906 (9th Cir. 1998) (affirming
dismissal of an alien’s 28 U.S.C. § 2241 petition and
holding that he “may not collaterally attack his state court
conviction in a habeas proceeding against the INS”); Neyor
v. INS, 155 F. Supp. 2d 127, 137 (D.N.J. 2001) (“[prior
cases] suggest that this Court should not review the validity
of an expired conviction under § 2241 where that conviction
serves as a predicate for INS detention”).
  Drakes makes two arguments in an attempt to
distinguish Daniels and Coss from the present case. First,

5. As the District Court noted, Drakes “did not file a timely direct appeal,
and by the time he filed his motion for state post conviction relief, he
was finished serving the state sentence, and thus his motion was
untimely.” App. at 35-36. Additionally, Drakes missed his chance to file
a section 2254 petition in a federal court. App. at 36.
6. Drakes does not argue in his brief that Daniels and Coss may be
distinguished from the present case based on any language in 28 U.S.C.
§§ 2241, 2254, or 2255.
                             9


he contends that there is a “disparity of culpability”
between himself, a lawful permanent resident, and the
criminal defendants in Daniels and Coss. Essentially,
Drakes claims that unlike Daniels and Coss, he may or may
not be a criminal. In other words, if he prevails on his
collateral claim, his record may be wiped clean whereas in
Daniels and Coss, even if the criminal petitioner succeeds
in challenging his enhanced sentence, he is still an offender
serving a sentence for a criminal offense.
  Drakes points to no case law to support his argument.
Moreover, Drakes fails to address the Supreme Court’s
reasoning for prohibiting collateral attacks — i.e. the ease
of administration of justice and the finality of a judgment.
Whether a petitioner challenges a prior state conviction in
the context of a sentencing enhancement or in the context
of an order of removal, “the goals of easy administration
and finality have ample ‘horsepower’ to justify foreclosing
relief ” under a federal post conviction proceeding. Daniels,
532 U.S. at 383.
   Drakes also contends that the consequences of an order
of deportation may be more severe than the term of
imprisonment imposed in the ordinary criminal case. Pet.’s
Br. at 13. Drakes argues that, in some cases, the
punishment of deportation is greater than an enhanced
sentence. Indeed, the Supreme Court has recognized that,
“[t]hough deportation is not technically a criminal
proceeding, it visits a great hardship on the individual and
deprives him of the right to stay and live and work in this
land of freedom. That deportation is a penalty — at times
a most serious one — cannot be doubted.” Bridges v.
Wixon, 326 U.S. 135, 154 (1945). However, removal of an
alien who violates the immigration laws does not constitute
punishment but, rather, is a civil action necessary to
enforce the country’s immigration laws. Even if removal
involves a greater potential injury to a petitioner than an
enhanced sentence, such an injury does not outweigh the
interests of finality and ease of administration. Allowing
Drakes another chance to collaterally attack his prior
convictions would “sanction an end run around statutes of
limitations and other procedural barriers that would
preclude the movant from attacking the prior conviction
                             10


directly. Nothing in the Constitution or [Supreme Court]
precedent requires such a result.” Daniels, 532 U.S. at 383.
   Finally, in Daniels and Coss, the Supreme Court
recognized two possible exceptions to this rule. First, the
Court recognized that defendants may challenge the prior
conviction where there was a failure to appoint counsel in
violation of the Sixth Amendment, as set forth in Gideon v.
Wainwright, 372 U.S. 335 (1963). See Coss, 532 U.S. at
404. Second, the Court suggested, but expressly chose not
to define, 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 383. Neither exception applies here.
    Drakes was represented by counsel throughout his state
court criminal proceedings and does not advance a Gideon
claim in his habeas petition. Rather, his claims are limited
to ineffective assistance of counsel, that his guilty plea was
not knowing and intelligent, and violation of his rights
under the Vienna Convention on Consular Relations. The
“ ‘failure to appoint counsel for an indigent defendant [is] a
unique constitutional defect’ that justifie[s] the exception
for challenges concerning Gideon.” Daniels, 532 U.S. at 378
(citation omitted). Drakes’s constitutional claims do not rise
to that level.
   Drakes does not argue that this is one of those “rare
cases” where a petitioner did not have any available
channel of review, and such an argument would be
unsuccessful. Drakes had ample time to seek review of his
state convictions on direct appeal or through post-
conviction or habeas review. On March 4, 1999, when the
INS initiated removal proceedings against Drakes, Drakes
still had the option of pursuing a challenge to his state
conviction. Until Drakes’s state sentence of probation ended
on August 3, 1999, Drakes had the opportunity to seek
post-conviction relief in state court. However, Drakes failed
to take advantage of this opportunity, waiting until
December 8, 1999 to move for state post-conviction relief.
That motion was denied because he was no longer in state
custody. State v. Drakes, 1999 WL 1222689, at *1 (Del.
Super. Ct. Dec. 8, 1999). His failure to seek appropriate
                              11


review resulted in forfeiture of his right to challenge his
state convictions.
  In his dissent in Daniels, Justice Souter aptly recognized
that a petitioner “may well have forgone direct challenge
because the penalty was not practically worth challenging,
and may well have passed up collateral attack because he
had no counsel to speak for him.” 532 U.S. at 391. Justice
Souter’s concerns, which did not persuade the majority of
the Supreme Court, do not apply here. Drakes was on
notice of the consequences of his convictions. Not only was
he warned of possible deportation by his plea agreement,
but the INS initiated removal proceedings five months
before the exhaustion of his state sentence. Consequently,
Drakes had ample opportunity and incentive to challenge
his state convictions through direct appeal or post-
conviction review, but he chose not to pursue such relief.
Thus, neither possible exception to the Daniels/Coss rule
applies here.

                             III.

                       CONCLUSION
   We affirm the District Court’s decision to extend the
Supreme Court’s holdings in Daniels and Coss to bar in a
section 2241 habeas proceeding a collateral attack on a
prior state conviction where the conviction serves as a
predicate for an order of removal. Drakes closed the door
on review of his state convictions by failing to timely pursue
a remedy through direct appeal, state post-conviction
review, or a habeas petition. The District Court’s decision is
affirmed.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
