United States v. Bob Hill ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7746
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BOB HILL, a/k/a Shawn, a/k/a Marcos Leon,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:03-cr-00280-TLW-1)
Submitted: December 13, 2012 Decided: December 19, 2012
Before MOTZ, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Bob Hill, Appellant Pro Se. Arthur Bradley Parham, Assistant
United States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bob Hill appeals the district court’s denial of his
petition for writ of error coram nobis, in which he contends
that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), should be
retroactively applied to invalidate his guilty plea, given
Hill’s claims that his attorney failed to advise him about the
immigration consequences of his plea. We review the district
court’s decision to deny the writ for abuse of discretion.
United States v. Akinsade, 686 F.3d 248, 252 (4th Cir. 2012).
To obtain relief under such a writ, which is limited
to “‘extraordinary’ cases presenting circumstances compelling
its use ‘to achieve justice,’” United States v. Denedo, 556 U.S.
904, 911 (2009) (quoting United States v. Morgan, 346 U.S. 502,
511 (1954)), a petitioner must show that “(1) a more usual
remedy is not available; (2) valid reasons exist for not
attacking the conviction earlier; (3) adverse consequences exist
from the conviction sufficient to satisfy the case or
controversy requirement of Article III; and (4) the error is of
the most fundamental character.” Akinsade, 686 F.3d at 252
(internal quotation marks omitted).
In this case, Hill fails to demonstrate why the more
usual route of raising his claims via a 28 U.S.C.A. § 2255 (West
Supp. 2012) motion is not available to him. See Akinsade, 686
F.3d at 252. Because Hill is still serving his term of
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supervised release, he is “in custody” for purposes of § 2255.
United States v. Pregent, 190 F.3d 279, 283 (4th Cir. 1999).
And the mere fact that we have held that Padilla cannot be
retroactively applied to cases on collateral review, see United
States v. Mathur, 685 F.3d 396, 401-02 (4th Cir. 2012), does not
mean that a § 2255 motion is a form of relief that is
“unavailable” to Hill. See In re Jones, 226 F.3d 328, 333 (4th
Cir. 2000). As a result, Hill has failed to demonstrate that he
is entitled to coram nobis relief. See Akinsade, 686 F.3d at
252.
Because we discern no abuse of discretion on the part
of the district court, we affirm its judgment. We grant leave
to proceed in forma pauperis. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED
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