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.
Before: Scirica, Chief Judge, Sloviter and Nygaard, Circuit Judges
The opinion of the court was delivered by: Sloviter, Circuit Judge.
Submitted Under Third Circuit LAR 34.1(a) May 22, 2003
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.*fn1
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.*fn2 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 ...