Opinion
Case No. 03-CV-2903
November 17, 2003
NEIL SKEETE, Brooklyn, New York, pro se, for Plaintiff
TIMOTHY D. LYNCH, ESQ., Brooklyn, New York, for the Defendant
ROSLYNN R. MAUSKOPF, ESQ., for the Defendant
MEMORANDUM AND ORDER
Pro sepetitioner Neil Skeete ("Skeete") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and 2254 to vacate his October 11, 2000 second degree assault conviction in New York state court. In an Order to Show Cause dated June 16, 2003, the Court deemed the petition to be brought pursuant to § 2241, and further deemed the federal government to be the appropriate respondent. Based on his state court conviction, the Bureau of Immigration and Customs Enforcement ("BICE") commenced removal proceedings against Skeete, who is a native and citizen of Trinidad and Tobago. Although Skeete named the State of New York as the sole respondent to his petition, he is currently in the custody of the BICE in Pennsylvania. Because Skeete has fully served his underlying state conviction (he is neither in the State's custody nor under any form of supervised release), the State of New York is not an appropriate party to this litigation; moreover, there is no merit to his substantive claims. The petition is accordingly denied.
On May 6, 2003, an immigration judge issued an order finding Skeete subject to mandatory custody pursuant to 8 U.S.C. § 1226(c)(1)(B) (2003), based on his aggravated felony conviction. A removal hearing was held on August 13, 2003, and an order of removal was issued on October 6, 2003. Skeete is thus seeking to overturn his state conviction in order to prevent BICE from having a basis for deporting him.
The threshold issue before the Court is whether Skeete may bring a collateral challenge to an underlying state court conviction to challenge the federal removal proceedings against him. The Supreme Court resolved related questions in Daniels v. United States, 532 U.S. 374 (2001) and its companion case, Lackawanna County District Attorney v. Coss, 532 U.S. 394 (2001). Both cases featured a prisoner attempting to use collateral-review procedures to invalidate previous state convictions that enhanced the sentence he was currently serving. In Daniels, the Court held, in the context of a § 2255 petition, 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 (or because the defendant did so unsuccessfully), then the defendant is without recourse." Daniels, 532 U.S. at 382. Coss expanded this holding to also cover § 2254 petitions. Coss, 532 U.S. at 402.
Although neither the Supreme Court nor the Second Circuit has applied the holdings of Daniels and Coss to § 2241 petitions seeking to attack prior convictions in deportation proceedings, other federal courts have uniformly found such attacks to be impermissible. See, e.g., Drakes v. INS, 330 F.3d 600 (3d Cir. 2003) (holding that the Supreme Court's decisions in Daniels and Coss mandated dismissal of a § 2241 challenge to a previous state conviction in a removal proceeding); Contreras v. Schiltgen, 30, 31-32 (9th Cir. 1997) ("Contreras may not collaterally attack his state court conviction in a habeas proceeding against the INS."); Plummer v. Ashcroft, 258 F. Supp.2d 43, 46 (D. Conn. 2003) ("this § 2241 petition cannot be used to challenge Plummer's underlying state conviction.").
Even in the absence of this procedural bar, Skeete's claims are without merit. As best the Court can glean from Skeete's petition, he advances two arguments why his underlying state conviction should be reversed: 1) that his appellate attorney rendered ineffective assistance of counsel by failing to "make a simple claim of complete innocence," Skeete Petition, at 3; 2) that there were "numerous substantive and procedural due process violations and errors of the United States Constitution, Federal Statutory law, the New York State Constitution, and the New York State Criminal Procedure law committed by the People," Skeete Petition, at 4.
Under the familiar standard of Strickland v. Washington, 466 U.S. 668 (1984), a defendant's right to effective assistance of counsel is denied when a defense attorney's performance falls below an objective standard of reasonableness and thereby prejudices the defense. In order to show that his appellate attorney's alleged error — failing to argue actual innocence — was unreasonable, Skeete would have to demonstrate that there was compelling evidence of actual innocence in the record which his lawyer ignored. But Skeete alleges no relevant facts, nor does he point to anything in the record suggesting that even a colorable actual innocence claim existed on appeal.
Similarly, Skeete's second claim is no more than a vague allegation that "numerous" violations and errors occurred at his trial. Skeete fails to offer even the most cursory description of these alleged errors. He offers no facts, nor any reference to the record. Such vague, conclusory and unsupported claims do not advance a viable claim for habeas corpus relief. See, e.g., Maddox v. Lord, 818 F.2d 1058, 1061 (2d Cir. 1987) (Court can deny habeas petition when claims put forward are merely vague or conclusory).
CONCLUSION
The petition is denied. A certificate of appealability will not issue because Skeete has failed to make a substantial showing of the denial of a federal right. See 28 U.S.C. § 2253.
SO ORDERED.