Opinion
CL-2010-16601
05-16-2011
Ibrahim v. Superintendent of the Rappahannock Regional Jail
Larry C. Brown, Jr. Counsel for Petitioner Adhem R. Ibrahim Kevin O. Barnard Counsel for Respondent Superintendent of the Rappahannock Regional Jail Ryan Fitzgerald Assistant Commonwealth's Attorney Randy I. Bellows
DENNIS J. SMITH. CHIEF JUDGE
MARCUS D. WILLIAMS
JANE MARUM ROUSH
LESLIE M. ALDEN
JONATHAN C.THACHER
R. TERRENCE NEY
RANDY I. BELLOWS
CHARLES J. MAXFIELD
BRUCE DWHITE
ROBERT J. SMITH
DAVID S. SCHELL
JAN L BRCDIE
LORRAINE NORDLUND
BRETT A KASSASIAN
MICHAEL F. DEVINE
JUDGES BARNARD F. JENNINGS
THOMAS J. MIDDLETON
THOMAS A. FORTKDRT
RICHARD J, JAMBORSKY
JACK B. STEVENS
J. HOWE BROWN
F BRUCE BACH
M. LANGHORNE KEITH
ARTHUR B. VIEREGG
KATHLEEN H. MACKAY
ROBERT W. WOOLDRIDGE, JR.
MICHAEL P. McWEENY
GAYLORD L FINCH. JR
STANLEY P. KLEIN
RETIRED JUDGES
LETTER OPINION
May 16, 2011
Dear Counsel:
On April 29, 2011, this Court conducted an evidentiary hearing on the second prong of Strickland v. Washington, 466 U.S. 668 (1984), namely, whether Petitioner Adhem R Ibrahim was prejudiced as the result of the ineffective assistance of counsel provided by his trial counsel in connection with his guilty plea in a criminal case before the Fairfax County General District Court. During the course of that hearing, counsel for Respondent Superintendent of the Rappahannock Regional Jail made an oral motion to dismiss Mr. Ibrahim's Petition for Writ of Habeas Corpus ("Petition") for mootness. The Court took the matter under advisement and both parties subsequently submitted briefs on the issue. After reviewing the parties' briefs, the Court is now prepared to rule.
I. Summary
Petitioner is incarcerated in federal custody at the Rappahannock Regional Jail, facing deportation due solely to his January 27, 2010 conviction in the Fairfax County General District Court for misdemeanor possession with intent to distribute marijuana, which is considered an aggravated felony for deportation purposes. See 8 U.S.C.S. § 1227(a)(2)(A)(iii) ("any alien who is convicted of an aggravated felony at any time after admission is deportable"); see also 8 U.S.C.S. § 1101{a)(43) ("[t]he term 'aggravated felony' means... illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act [21 U.S.C.S. § 802]), including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code)"). By writ of habeas corpus, he petitions this Court to take one action, i.e., to vacate the underlying state conviction, which is the sole basis of his federal incarceration. While this Court has no authority or jurisdiction to order the release of Petitioner from federal custody, the Court does have authority and jurisdiction to vacate the underlying state conviction.
In support of this assertion, counsel for Petitioner has provided the "Notice to Appear" from the U.S. Department of Homeland Security ("DHS") dated August 13, 2010 in which DHS alleges that Petitioner is a lawful permanent resident who is removable as he was, "on January 27, 2010, convicted in the General District Court [at] Fairfax County Virginia for the offense of sell, give, distribute less than one half ounce of marijuana, in violation of VA Code 18.2-248.1," which the Court makes part of a record of these proceedings. No other reasons for removal under the Immigration and Nationality Act were given. Respondent has not contested that this underlying Virginia conviction is the sole basis for Petitioner's current federal detentions.
For the reasons stated herein, the writ is GRANTED. Petitioner's conviction in the Fairfax County General District Court, case number CO9302552, for possession with intent to distribute marijuana is hereby vacated and proceedings in the case shall resume in the General District Court or the Circuit Court, subject to the discretion of the Office of the Commonwealth's Attorney as to how it wishes to proceed. This Court makes no order with respect to the petitioner's federal custodial status, as such an order would be beyond the authority and jurisdiction of this Court. II Background
In the course of the instant proceeding, and in its prior letter opinion of March 17, 2011, this Court has addressed and resolved a number of questions, specifically, as follows:
1. Does the Circuit Court have jurisdiction to hear a habeas corpus proceeding where the underlying misdemeanor proceeding took place in the General District Court and the petitioner received an entirely suspended period of incarceration? The Court answered this question in the affirmative.
2. Where defense counsel gives erroneous and prejudicial advice to a petitioner regarding the immigration/deportation consequences of a guilty plea, is the petitioner entitled to habeas relief? The Court answered this question in the affirmative.
3. In order to determine whether a petitioner is entitled to habeas relief, must the Court first determine whether the United States Supreme Court's decision in Padilla v. Kentucky, 130 S.Ct. 1473, 1486 (2010), is retroactive? The Court answered this question in the negative, holding that, even before Padilla, misadvice on immigration and/or deportation consequences of a guilty plea - in contrast with non-advice - has been grounds for vacating a guilty plea in Virginia.
4. Was Petitioner given erroneous advice regarding the immigration and/or deportation consequences of his guilty plea? The Court answered this question in the affirmative, and notes that counsel for Respondent Superintendent of the Rappahannock Regional Jail does not contest this finding.
5. Did such erroneous advice regarding the immigration/deportation consequences of his guilty plea constitute ineffective assistance of counsel under the first prong of Strickland v. Washington, 466 U.S. 668 (1984)? The Court answered this question in the affirmative.
6. Was such erroneous advice regarding the immigration and/or deportation consequences of his guilty plea prejudicial under the second prong of Strickland, i.e., would Petitioner have not pled guilty and instead gone to trial but for the erroneous advice? At the evidentiary hearing conducted on April 29, 2011, the Court found that the prejudice prong of Strickland had been established; in other words, but for defense counsel's erroneous advice, Petitioner would have proceeded to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985); Lewis v. Warden, 274 Va. 93, 118, 645 S.E.2d 492, 506 (2007).
This brings the Court to the only two remaining issues: (i) Does the Court retain jurisdiction over this matter? (ii) Even if the Court retains jurisdiction, is the matter moot? If the answer to each of these questions is in the affirmative, Petitioner is entitled to the relief he seeks. If the answer to either of these questions is in the negative, this Court can give Petitioner no relief.
Both of the foregoing questions arise out of the fact that, after the filing of the Petition and during its pendency, the period of time within which the suspended sentence could have been revoked had expired, specifically on January 27, 2011. During the April 29 hearing, Respondent moved to strike the Petition on that basis, asserting that the Petition was moot and the Court no longer had jurisdiction. In its Brief in Support of Oral Motion to Dismiss for Mootness, Respondent further argued that there is no order that this Court could enter that would directly impact Petitioner's confinement because his Virginia sentence is complete. See Carroll v. Johnson, 278 Va. 683, 694, 685 S.E.2d 647, 652 (2009). Therefore, Respondent argued, while this Court acquired jurisdiction when the Petition was filed because Petitioner's suspended sentence had not expired, Va. Code § 8.01-654(A)(2), that Petition became moot after the period of suspension ended.
In his Objection to Respondent's Brief in Support of Oral Motion to Dismiss, Petitioner argued that the Petition is not moot as he is still being unlawfully detained based on the underlying state conviction and an actual case or controversy remains. Petitioner argues that he is "in custody" as this Court still has a level of control over him. See McClenny v. Murray, 246 Va. 132, 134, 431 S.E.2d 330 (1993). Petitioner also notes that "when a court acquires jurisdiction of the subject matter and the person, it retains jurisdiction until the matter before it has been fully adjudicated." Kline v. Commonwealth, 2010 Va. Cir. LEXIS 70, 11 (citing Lang v. Commonwealth, 205 Va. 511, 514, 137 S.E.2d 896 (1964)).
III. Analysis
"The writ of habeas corpus ad subjiciendum shall be granted forthwith by the Supreme Court or any circuit court, to any person who shall apply for the same by petition, showing by affidavits or other evidence probable cause to believe that he is detained without lawful authority." Va. Code Ann. § 8.01-654(A)(1). When a petitioner is being "held under criminal process" based on a district court conviction, "only the circuit court for the city or county wherein the district court sits shall have the authority to issue writs of habeas corpus." Va. Code Ann. § 8.01-654(B)(1). A petition for writ of habeas corpus "may allege detention without lawful authority through challenge to a conviction, although the sentence imposed for such conviction is suspended or is to be served subsequently to the sentence currently being served by petitioner." Va. Code § 8.01(B)(3). The habeas corpus statute is remedial and, therefore, must be "construed liberally" Carroll, 278 Va. at 693 (citing Greenberg v. Commonwealth, 255 Va. 594, 600, 499 S.E.2d 266, 269 (1998)).
However, "courts are not constituted... to render advisory opinions [or] to decide moot questions..." City of Fairfax v. Shanklin, 205 Va. 227, 229-30, 135 S.E.2d 773, 776 (1964); see also Blue Cross & Blue Shield v. St. Mary's Hospital, 245 Va. 24, 35, 426 SE.2d 117, 123 (1993); Erie Insurance Group v. Hughes, 240 Va. 165, 170, 393 S.E.2d 210, 212 (1990). The duty of every court "is to decide actual controversies by a judgment which can be carried into effect." Mills v. Green, 159 U.S. 651, 653 (1895). Habeas relief may only be afforded in "cases in which an order, entered in the petitioner's favor, interpreting a conviction or a sentence, will, as a matter of law and standing alone, directly impact the duration of a petitioner's confinement." Carroll, 278 Va. at 694.
On the jurisdictional question, it is well-established that, if a Court properly assumes jurisdiction at the outset of the proceedings, in other words, if the petition was properly and timely filed, the Court retains jurisdiction to decide the matter. See Va. Code § 8.01-654(A)(2); see also Laing v. Commonwealth, 205 Va. 511, 514, 137 S.E.2d 896 (1964); Erickson-Dickson v. Erickson-Dickson, 12 Va. App. 381, 388, 404 S.E.2d 388, 7 Va. Law. Rep. 2513 (Va. App. 1991). The mootness issue, however, is far from well-established.. Indeed, this Court could find no case in the Commonwealth precisely on point, although there are both trial and appellate court decisions that address similar matters as discussed in greater detail below.
Therefore, this is a matter of first impression. This Court holds as follows: Where the issue before the Court is whether to vacate a guilty plea and consequent conviction, and where the petitioner is not only facing potential incarceration but is actually incarcerated due solely to that guilty plea and consequent conviction, the matter is not deemed moot just because he no longer is at risk of additional state incarceration. That he is the custody of federal authorities, rather than state authorities, does not render the matter moot for, under either circumstance, the petitioner's guilty plea continues to have an immediate and profound impact on the petitioner's liberty.
Black's Law Dictionary's definition of the "mootness doctrine" reads as follows: "The principle that American courts will not decide moot cases - that is, cases in which there is no longer any actual controversy." BLACK'S LAW DICTIONARY 1100 (9th ed. 2004). The term "moot" is defined by Black's to include "[h]aving no practical significance; hypothetical or academic." Id. at 1099, In the instant case, there is nothing hypothetical or academic about Petitioner's current incarceration, nor could one argue that the Petitioner's guilty plea - which is the sole reason he is incarcerated today - has "no practical significance." In short, the matter remains in "actual controversy" and, therefore, is not moot.
The Supreme Court of Virginia examined a similar issue when mootness was raised in the case of Blair v. Peyton, 210 Va. 416 (1970). In that case, the petitioner completed serving his sentences imposed as a result of his armed robbery convictions prior to tiling his habeas petition. The Supreme Court determined that the matter was moot as "[t]he petitioner is no longer detained and there is no custody from which to discharge him." Id. at 417. In other words, the petitioner in Blair was not incarcerated or under any other restraint when he filed his petition and was merely challenging the "civil disabilities" resulting from his underlying convictions. Id. Blair is, therefore, distinguishable from Petitioner's case in that Petitioner is clearly in custody, albeit federal custody, as the result of his conviction.
This case is similarly distinguishable from Kline v. Commonwealth, 2010 Va. Cir. LEXIS 70 (2010). In Kline, the petitioner plead guilty to possession with intent to distribute marijuana after receiving incorrect advice from her trial counsel about the implications a Virginia conviction would have on her pending New Jersey case. The Circuit Court of Loudoun County determined that the petitioner met both prongs of the Strickland test and that her trial counsel's advice was deficient even though the "implications of the Virginia conviction on the actual length of the New Jersey sentence [were] uncertain." Id. at *9. However, because the petitioner was "released from all forms of legal restraint,.. and was not thereafter 'presently' detained" the Circuit Court determined that her habeas petition was moot. Id. at *11-12. The petitioner in Kline "no longer ha[d] a stake in the outcome of her habeas petition" as she was not in custody; therefore, "no case or controversy subject to habeas relief existed. Id. at *12. In contrast, Petitioner is restrained as the result of his Virginia conviction and has an extraordinary stake in the outcome of his Petition. Therefore, his habeas claim cannot be considered moot.
Whether Petitioner would be entitled to habeas relief if he was facing deportation but was not actually in federal custody is a matter which is not before the Court since Petitioner is indisputably in federal custody at the present time. In this respect the Court would note that, while it did not reach the issue of whether Padilla would apply retroactively to Petitioner's case in its March 17 opinion, the United States Supreme Court's discussion in Padilla with regard to the severity of immigration consequences is significant. The Supreme Court emphasized in Padilla that "changes to our imrnigration law have dramatically raised the stakes of a noncitizen's criminal conviction... These changes confirm our view that, as a matter of federal law, deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes." 130 S.Ct. at 1480. The Supreme Court went on to say that it has "long recognized that deportation is a particularly severe 'penalty.'" Id. at 1481.
Notably, the habeas statute in Virginia has undergone significant changes between 1970, when the Virginia Supreme Court decided Blair v. Peyton, and the present. In 1970, Virginia Code section 8-596 did not grant circuit courts the power to vacate convictions when the petitioner was not actually detained. See also Smyth v. Holland, 199 Va. 92, 97, 97 S.E.2d 745, 748 (1957)("scope of the inquiry is limited to the propriety of the prisoner's present detention, that is, whether his detention is by due process of law.") In contrast, the modem habeas corpus statute, Virginia Code section 8.01-654, permits a petitioner to "allege detention without lawful authority through challenge to a conviction, although the sentence imposed for such conviction is suspended or is to be served subsequently to the sentence currently being served by petitioner." Va. Code Ann. § 8.01(B)(3).
Based in part on these statutory changes, the Supreme Court of Virginia has abrogated the "immediate release" rule in the case of Carroll v. Johnson, 278 Va. 683 (2009). The "immediate release rule" was established in McDorman v. Smyth, 187 Va. 522, 525, 47 S.E.2d 441, 443 (1948), and provided that habeas corpus relief "is available only where the release of the prisoner from his immediate detention will follow as a result of an order in his favor." In Carroll, the Supreme Court of Virginia noted that "the scope of the writ of habeas corpus was expanded" in Virginia subsequent to McDorman to include challenges to convictions when there is a suspended sentence. In light of the changes to the Virginia habeas statute cited above and United States Supreme Court authority, the Supreme Court of Virginia held that Virginia Code section 8.01-654(A)(1) "allows a petitioner to challenge the lawfulness of the entire duration of his or her detention so long as an order entered in the petitioner's favor will result in an order that, on its face and standing alone, will directly impact the duration of the petitioner's confinement." Carroll, 278 Va. at 693.
This Court finds that its order vacating Petitioner's underlying conviction for possession with intent to distribute marijuana will "directly impact" the duration of his current confinement as the Virginia conviction is the sole cause -of his pending immigration proceedings. The circumstances of the instant case are in stark contrast to the types of "disputes which only tangentially affect an inmate's confinement" cited in Carroll, "such as prison classification issues concerning the rate at which a prisoner earns good conduct or sentence credits, or challenges to parole board decisions..." Id. at 694. In this case, Petitioner faces deportation solely as the result of his underlying Virginia conviction for an "aggravated felony" and is being held in federal custody at the Rappahannock Regional Jail pending the resolution of immigration proceedings. Therefore, it is clear to the Court that vacating the underlying conviction will "directly impact" his current confinement.
Accordingly, for the reasons stated above, a writ of habeas corpus GRANTED and Petitioner's conviction in the Fairfax County General District Court, case number CO9302552, for possession with intent to distribute marijuana is hereby VACATED. Proceedings in the case shall resume in the General District Court or the Circuit Court, subject to the discretion of the Office of the Commonwealth's Attorney. An Order in accordance with this Letter Opinion shall issue. Circuit Court Judge
ORDER
FOR THE REASONS stated in the Letter Opinion issued today, a writ of habeas corpus is GRANTED in this matter and Petitioner's conviction in the Fairfax County General District Court, case number CO9302552, is hereby VACATED. Proceedings in this case shall resume in the General District Court or the Circuit Court, subject to the discretion of the Office of the Commonwealth's Attorney. The Clerk's Office is to provide a copy of this Order to all counsel of record.
This is a FINAL ORDER.
SO ORDERED this 16 Day of May, 2011. Randy I. Bellows
Circuit Court Judge
ENDORSEMENT OF THIS ORDER BY COUNSEL OF RECORD FOR THE
PARTIES IS WAIVED IN THE DISCRETION OF THE COURT PURSUANT TO
RULE 1:13 OF THE SUPREME COURT OF VIRGINIA
8 _______________________________________________