United States v. Swaby

• Decision Date: 24 April 2017
• Docket Number: No. 15-7621,No. 15-7616,15-7616
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Philip SWABY, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Philip Swaby, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

855 F.3d 233

UNITED STATES of America, Plaintiff–Appellee,

v.Philip SWABY, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Philip Swaby, Defendant–Appellant.

No. 15-7616

No. 15-7621

United States Court of Appeals, Fourth Circuit.

Argued: December 7, 2016

Decided: April 24, 2017

ARGUED: Bradley Nelson Garcia, O'MELVENY & MYERS LLP, Washington, D.C., for Appellant. Aaron Simcha Jon Zelinsky, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Jeremy Maltby, David K. Roberts, O'MELVENY & MYERS LLP, Washington, D.C., for Appellant. Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Before GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.

Reversed, vacated, and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn and Judge Thacker joined.

GREGORY, Chief Judge:

Philip Swaby brings a Sixth Amendment ineffective assistance of counsel challenge to his conviction, which led to his deportation as an aggravated felon. While Swaby's counsel provided deficient performance, the district court determined that the deficient performance did not prejudice his defense because the court corrected his counsel's deficiencies. For the reasons below, we reverse the district court's dismissal, grant Swaby's habeas petition, and remand for further proceedings.

I.

A.

Philip Swaby is a citizen of Jamaica, and had been a lawful permanent resident of the United States since June 6, 2001. He is married to a U.S. resident, has two daughters who are U.S. citizens, and acts as a father to his wife's daughter from a prior marriage.

On November 10, 2011, Swaby and his then-girlfriend, now-wife, Ms. Robinson, were indicted for trafficking in counterfeit goods under 18 U.S.C. § 2320 and conspiracy to traffic in counterfeit goods. According to the indictment, Swaby and Robinson sold counterfeit merchandise from a store called Fashion Trendz. They had counterfeit purses, handbags, and other merchandise; counterfeit labels for expensive brand names; and generic merchandise bearing no labels.

Peter Ward served as Swaby's appointed counsel. Ward immediately recognized that "immigration status would be a significant consideration" for Swaby, who had a green card and intended to apply for U.S. citizenship. J.A. 147. And from the beginning of the representation, Swaby "[wa]s concerned and ha[d] always been concerned about his immigration status." J.A. 83.

Under federal immigration law, any alien convicted of an "aggravated felony" is deportable. 8 U.S.C. § 1227(a)(iii). Aliens rendered deportable because of an aggravated felony are ineligible for asylum or cancellation of removal. Moncrieffe v. Holder , ––– U.S. ––––, 133 S.Ct. 1678, 1682, 185 L.Ed.2d 727 (2013). Indeed, deportation is so likely for those convicted of an aggravated felony that it is akin to "mandatory deportation." United States v. Akinsade , 686 F.3d 248, 254 (4th Cir. 2012). One such aggravated felony that triggers mandatory deportation is an offense involving counterfeiting for which the term of imprisonment is greater than one year. 8 U.S.C. § 1101(a)(43)(R). A second aggravated felony is one that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000." 8 U.S.C. § 1101(a)(43)(M)(i).

Recognizing that he lacked expertise in immigration law, Ward contacted Mary Ann Berlin, an immigration lawyer, for advice. He sent her a copy of Swaby's indictment and the relevant criminal statute.

Berlin immediately recognized that Swaby needed to avoid conviction of an aggravated felony. She first advised Ward that Swaby's sentence must be under one year in order to avoid categorization as an aggravated felony. When looking at the criminal counterfeiting statute, she saw that 18 U.S.C. § 2320(a)(2) prohibited trafficking of counterfeit merchandise "the use of which is likely ... to deceive." Conversely, § 2320(a)(1) lacked any "deceit" or "fraud" language, and thus would not be an aggravated felony for immigration purposes under 8 U.S.C. § 1101(a)(43)(M)(i). She advised Ward accordingly, and based on this advice Ward negotiated a plea agreement where Swaby would plead guilty to 18 U.S.C. § 2320(a)(1) and agree to pay $14,220 in restitution. His sentence was 364 days long.

Unfortunately, Berlin had looked at an amended version of § 2320(a)(1) that did not apply to Swaby's case.¹ Based on the version of the statute applicable to Swaby's case, 18 U.S.C. § 2320(a)(1)'s language included deception. As a result, Swaby unknowingly pleaded to an aggravated felony that rendered him automatically deportable.

Swaby's plea agreement bore the broad warning about immigration consequences that is common to many plea agreements:

By pleading guilty, the Defendant will also be giving up certain valuable civil rights and may be subject to deportation or other loss of immigration status.... [C]onviction for a broad range of crimes can lead to adverse immigration consequences, including automatic removal from the United States.... Defendant understands that no one, including his attorney or the Court, can predict with certainty the effect of a conviction on immigration status. Defendant nevertheless affirms that he wants to plead guilty regardless of any potential immigration consequences.

J.A. 34. And at Swaby's plea hearing, the district court recited the warning commonly heard at such proceedings: "You should understand that, by pleading guilty this afternoon, you may be essentially doing something that will lead to your deportation or removal from the United States." J.A. 49. The district court also referenced potential removal from the United States when informing Swaby of the many collateral consequences Swaby may endure because he pleaded to a felony charge. J.A. 60–61.

Ward emphasized to the court that he consulted with Berlin about the plea agreement's immigration consequences, and that "the factors in the plea were arrived [at]" based on those discussions. J.A. 64–65. While neither Ward nor the district court could guarantee Swaby's immigration consequences, the district court warned Swaby of merely the "risk" of deportation. J.A. 66. Neither Ward nor the district court informed Swaby that he was pleading to a crime that rendered him automatically deportable.

Swaby pleaded guilty and was sentenced to 364 days of incarceration, $14,220 in restitution payment, and three years of supervised release. But soon after Swaby was released from prison, the Department of Homeland Security lodged an immigration detainer against him and planned to deport him because he had pleaded to an aggravated felony.

B.

While detained, Swaby filed a petition for a writ of coram nobis on March 20, 2015. He alleged that he received ineffective assistance of counsel during his criminal proceedings, in violation of the Sixth Amendment. The district court found that Ward's reliance on an inapplicable version of the statute and reassurance that pleading guilty to § 2320(a)(1) would reduce Swaby's risk of deportation was clearly wrong. J.A. 121. And Ward's error constituted deficient performance. But the district court found that Ward's deficient performance did not prejudice Swaby's proceedings because the court warned Swaby that his guilty plea could lead to his deportation, and thus remedied any misunderstanding that might have resulted from Ward's deficient performance. J.A. 123–24. As a result, the district court denied Swaby's coram nobis petition.

Swaby next filed a § 2255 habeas petition on September 9, 2015, alleging the same constitutional violation. See J.A. 127. The district court treated this petition like a second coram nobis petition because, although Swaby was still detained for immigration purposes, Swaby was no longer incarcerated and therefore no longer "in custody." J.A. 134 & n.2. For the same reasons as explained in the coram nobis petition, the district court denied habeas relief. Swaby filed a timely notice of appeal from this denial.

II.

On appeal, the government argues that we lack jurisdiction over Swaby's claim. According to the government, Swaby's coram nobis petition should have been treated like a § 2255 habeas petition because he was in custody at the time of filing. As a result, the government believes that we lack jurisdiction over Swaby's titled § 2255 habeas petition because it is an improper successive petition, and that we lack jurisdiction over Swaby's first petition because Swaby has not requested a certificate of appealability.

A writ of coram nobis is an exceptional remedy that may be granted only when a fundamental error has occurred and no other available remedy exists. United States v. Mandel , 862 F.2d 1067, 1075 (4th Cir. 1988). Here, habeas was in fact available to Swaby. As a result, Swaby could seek relief only through a habeas petition, and not through a coram nobis petition.

The parties dispute whether habeas was available to Swaby, because the case law is unclear if an individual under supervised release is still "in custody" after deportation. But an applicant need only be " ‘in custody’ when the application for habeas corpus is filed."² Carafas v. LaVallee , 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). And "[a] prisoner on supervised release is considered to be ‘in custody’ for the purposes of a § 2255 motion." United States v. Pregent , 190 F.3d 279, 283 (4th Cir. 1999). Here, Swaby was in the United States, under supervised release and detained by immigration authorities, when he filed both of his petitions. Thus, he was in custody, and habeas was available to Swaby when he filed his coram nobis petition. As a result, we view Swaby's first petition as an invalid coram nobis petition, and his titled habeas petition as a valid habeas petition for which Swaby has filed a notice of appeal.³

Swaby correctly notes that we are authorized to treat his timely notice of appeal as a request for a certificate of appealability....