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United States District Court, E.D. New York

April 29, 2004.


The opinion of the court was delivered by: STERLING JOHNSON, JR., District Judge


Petitioner Winston Harris ("Petitioner"), acting pro se, brings the above-captioned petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 ("§ 2241").*fn1 Petitioner requests that this Court vacate his final administrative removal order based upon alleged defects in his underlying New York State conviction. The Court finds that there is no relief that may be granted under this provision or any other form of habeas corpus relief, and that the Petition must be dismissed.


  Petitioner is a citizen of Jamaica who was admitted to the United States as a lawful permanent resident on July 24, 1974. Thereafter, Petitioner was arrested and charged in Kings County, New York with criminal possession of marijuana in the third degree in violation of New York Penal Law § 221.20 and criminal sale of marijuana in the fourth degree in violation of New York Penal Law § 221.40. After a jury trial, Petitioner was convicted of criminal sale of marijuana in the fourth degree and on June 28, 1983, Petitioner was sentenced in state court to a nine month term of imprisonment. Petitioner did not appeal the conviction.

  On January 6, 1988, the Immigration and Naturalization Service ("INS") served Petitioner with an Order to Show Cause and Notice of Hearing charging that he was subject to deportation pursuant to § 241(a)(11) of the Immigration and Nationality Act ("INA"), presently codified at 8 U.S.C. § 1227(a)(2)(B)(i), as an alien convicted of a felony related to a controlled substance. Following a hearing on July 21, 2002, the immigration judge found Petitioner removable as charged, denied all forms of relief, and ordered him removed to Jamaica. On February 27, 2003, the Board of Immigration Appeals affirmed and issued a Final Order of Removal.

  Petitioner's only challenge to the order of deporation is a collateral attack on his underlying state conviction. He claims that as a result of the immigration hearing, Petitioner's counsel identified what Petitioner now asserts to be newly discovered evidence. He contends that laboratory results that were introduced to the grand jury contained hearsay statements. On that ground, Petitioner requests that this Court vacate his state court conviction and the subsequent removal order that stems from that conviction.


  I. Procedural Remedies

  In light of Petitioner's status as pro se litigant, the Court must liberally construe the allegations of the complaint. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that a pro se complaint is held "to less stringent standards than formal pleadings drafted by lawyers."). Furthermore, a pro se complaint is interpreted so as "to raise the strongest arguments that [it] suggests." Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (citation omitted). Indeed, "courts may look to submissions beyond the complaint to determine what claims are presented by an uncounseled party." Boguslavsky v. Kaplan, 159 F.3d 715, 719 (2d Cir. 1998) (holding that pro se litigant should be afforded flexibility in pleading his or her action). Liberally construing the complaint, the Court nonetheless can find no avenue of relief. Although § 2241 gives this Court jurisdiction to review deportation orders under certain circumstances, this provision may not normally be used to challenge the underlying New York state conviction which is the basis for the removal order. Although neither the Supreme Court nor the Second Circuit has spoken directly to this issue, other courts have relied on related Supreme Court precedent to resolve this specific question. In Daniels v. United States, 532 U.S. 374, 382 (2001), and Lackawanna County District Attorney v. Coss, 532 U.S. 394, 403-04 (2001), the Supreme Court held that defendants may not use 28 U.S.C. § 2255 and 2254 to collaterally attack the validity of prior federal or state convictions that were then used to enhance their current sentences. Other circuit courts have applied these precedents to find that § 2241 may not be used to attack a prior criminal conviction that serves as the basis for an order of removal. See Drakes v. INS, 330 F.3d 600, 604 (3d Cir. 2003) ("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."); Contreras v. Schiltgen, 122 F.3d 30, 31-32 (9th Cir. 1997) ("[Petitioner] may not collaterally attack his state court conviction in a habeas proceeding against the INS."). This principle has also been followed in the district courts within the Second Circuit. See Skeete v. People of New York State, No. 03-CV-2903, 2003 WL 22709079, *1 (E.D.N.Y. Nov. 17, 2003) (applying Daniels and Coss to find a procedural bar, but nonetheless finding the challenge to the state sentence to be without merit); Plummer v. Ashcroft, 258 F. Supp.2d 43, 46 (D.Conn., 2003) ("[G]iven the undisputed fact of a conviction, this § 2241 petition cannot be used to challenge [Petitioner's] underlying state conviction."); Pietre v. Bintz, No. 01-CV-0260, 2003 WL 1562273, *4 (N.D.N.Y. Mar. 25, 2003) ("[A] habeas petition brought pursuant to 28 U.S.C. § 2241 cannot be used to challenge the underlying state conviction upon which an Immigration Judge's decision to order the removal of a petitioner is based."). Accordingly, to the extent that Petitioner's § 2241 petition to vacate his final administrative removal order arises out of allegations concerning the unconstitutionality of his underlying state conviction, this Court dismisses the petition for lack of subject matter jurisdiction.*fn2

  Nor is Petitioner's claim cognizable under any other avenues of habeas corpus review. In the usual case, Petitioner would be able to challenge the constitutionality of his state court conviction through a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("§ 2254"). However, federal courts have authority to entertain § 2254 petitions only from those persons "in custody in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2254(a). See also Maleng v. Cook, 490 U.S. 488, 491-92 (1989) ("While we have very liberally construed the `in custody' requirement for purposes of federal habeas, we have never extended it to the situation where a habeas petitioner suffers no present restraint from a conviction."). Petitioner does not meet the "in custody" requirement, as his sentence for the conviction at issue has long since expired.

  The common-law writ of error coram nobis also may not provide any relief to Petitioner. This remedy may be available under the All Writs Act, 28 U.S.C. § 1651(a), despite the statutory enactment of 28 U.S.C. § 2254 and other provisions which have replaced most common-law habeas corpus proceedings in federal court. "Coram nobis is essentially a remedy of last resort for petitioners who are no longer in custody pursuant to a criminal conviction and therefore cannot pursue direct review or collateral relief by means of a writ of habeas corpus." Fleming v. United States, 146 F.3d 88, 89-90 (2d Cir. 1998). However, the writ is strictly limited in its potential application. This remedy is designed to correct errors "of the most fundamental character." United States v. Morgan, 346 U.S. 502, 512 (1954). Because the nature and validity of Petitioner's claim is not of such an error, this remedy is also foreclosed.

  II. Merits

  Even if Petitioner had any remaining procedural mechanism for challenging his conviction in federal court, his claim would be denied on its merits. Petitioner appears to argue that the laboratory reports introduced to the grand jury contained hearsay statements, because they failed to indicate that the person who signed them had personal knowledge of the laboratory analysis contained therein. (Pet. at 2.) Although there is some discussion of this issue in New York courts, see People v. Calero, 618 N.Y.S.2d 996 (N.Y.Sup.Ct. 1994); People v. Washington, 652 N.Y.S.2d 750 (N.Y. App. Div. 1997), the claim may not serve as the basis of federal habeas relief. This very issue was considered by a District Court for the Southern District of New York, in Cadilla v. Johnson. That court held that "A jury conviction transforms any defect connected with the grand jury's charging decision into harmless error, because the trial conviction establishes not only probable cause to indict, but also proof of guilt beyond a reasonable doubt. . . . Petitioner's claim that hearsay in the grand jury proceeding undermined the legal sufficiency of the indictment is therefore not a constitutional claim that is cognizable under federal habeas review, because petitioner was convicted by a jury after a trial." 119 F. Supp.2d 366, 371-72 (S.D.N.Y, 2000) (citations omitted). Likewise, Petitioner Harris was convicted by a jury, and thus no federal constitutional claim may lie.


  For the foregoing reasons, this Court does not have jurisdiction over Petitioner's claim, so the Petition must be dismissed. The Clerk of the Court is directed to dismiss the Petition and close this case. Because Petitioner has not made a substantial showing of the denial of any constitutional right, a certificate of appealability will not be issued. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith.


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