                                                            NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                     No. 12-1753
                                    ____________

                           EDDY C. CHERYS, Appellant

                                         v.

                         UNITED STATES OF AMERICA
                                ____________

                          On Appeal from the District Court
                                 of the Virgin Islands
                               (D.C. No. 3-01-cv-00213)
                     District Judge: Honorable Curtis V. Gomez
                                    ____________

                           Argued December 10, 2013
             Before: FISHER, COWEN and NYGAARD, Circuit Judges.

                              (Filed: January 9, 2014 )




Joseph A. DiRuzzo, III, Esq. (ARGUED)
Fuerst Ittleman David & Joseph
1001 Brickell Bay Drive
32nd Floor
Miami, FL 33131

Nelson L. Jones, Esq. (ARGUED)
Office of United States Attorney
5500 Veterans Building, Suite 260
United States Courthouse
St. Thomas, VI 00802-6924
                                       ____________

                                OPINION OF THE COURT
                                     ____________

FISHER, Circuit Judge.

              Appellant Eddy Calisse Cherys appeals from the District Court of the

Virgin Islands’ dismissal of his motion pursuant to 28 U.S.C. § 2255, challenging his

conviction for conspiracy to commit drug trafficking on the grounds that he was legally

incompetent at the time of his trial. Specifically, he argues that his Sixth Amendment

right to the effective assistance of counsel was violated by his trial attorney’s failure to

request a competency hearing, and that his Fifth Amendment right to due process was

violated because he was tried and convicted while incompetent. For the reasons that

follow, we will affirm.


                                               I


       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.


       On January 8, 1998, a Virgin Islands grand jury returned a three-count indictment

against Cherys and two codefendants. After a jury trial that took place from October 5

through October 9, 1998, Cherys was convicted of conspiracy to possess with intent to

distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count I), and


                                               2
possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A)(ii)(II) (Count III). He was sentenced to 188-month terms of imprisonment

on each count, to run concurrently. On direct appeal, we vacated Cherys’s conviction on

Count III for insufficient evidence and affirmed it on Count I. United States v. Cherys,

250 F.3d 736 (3d Cir.) (unpublished opinion), cert. denied, 534 U.S. 897 (2001).


       Cherys timely filed a motion to vacate his sentence under 28 U.S.C. § 2255 on

November 4, 2001. The District Court denied Cherys’s § 2255 motion without a hearing

and declined to issue a Certificate of Appealability (“COA”). We granted a COA and

remanded to the District Court with instructions to hold a hearing on Cherys’s claim that

his counsel was constitutionally ineffective for failing to request a competency hearing

prior to or during trial, or prior to sentencing. Cherys v. United States, 405 F. App’x 589,

592 (3d Cir. 2011).


       The District Court held an evidentiary hearing on December 14, 2011, at which it

heard testimony from Cherys and his trial counsel, Anna Paiewonsky. Cherys testified

that he was held in pretrial detention at Guaynabo Metropolitan Detention Center in San

Juan, Puerto Rico. He testified that on September 23, 1998, about two weeks before his

trial began, he suffered a psychotic episode in which he hallucinated that he was

communicating with Jesus or God. Cherys was placed in the Special Housing Unit

(“SHU”) because of this episode. On October 2, 1998, Dr. Jose Gomez, a psychiatrist,

diagnosed his condition as “schizoaffective disorder, bi-polar type – axis I,” and


                                             3
prescribed Risperidone, an antipsychotic medication. JA at 55-57. After Cherys’s trial

Dr. Gomez added prescriptions for Lithium and Depacote. Cherys testified that his

hallucinations did not abate through the course of the trial, and that he experienced side

effects from the Risperidone including dizziness and drowsiness. He claimed to have

informed Paiewonsky of his problems during trial, but she testified to the contrary.


       The record reflects that after Cherys was convicted but before he was sentenced,

he sent a letter apprising the District Court of his mental health problems. This letter,

received by the Court on October 13, 1998, was introduced at the evidentiary hearing on

his § 2255 motion. Though difficult to read, Cherys’s letter appears to state that he was

medicated from September 29, 1998 to October 12, 1998. Three days after sending the

letter he filed a pro se motion for a new trial on the grounds that counsel took “him to

trial under medication for depress [sic] and that the tablets was [sic] making him sleep”

during the trial. JA at 160.


       At the hearing, Paiewonsky testified that she had never seen either document prior

to the proceedings on Cherys’s § 2255 motion, that she had no knowledge prior to or

during trial that Cherys was suffering psychotic episodes, that he never expressed to her

that he was suffering from side effects of his medication, and indeed that she was

unaware that he was taking antipsychotic medications. She testified that she met with

him “several times” prior to trial, including immediately before trial began, and “every

day in the courtroom” during the course of the trial. JA at 127, 129. At no point did she


                                              4
notice anything abnormal about Cherys’s behavior, though she admitted that she had

heard, without corroboration, that he had once attempted to commit suicide. Paiewonsky

testified that her ability to interact with Cherys during trial was limited because he had to

sit behind her, rather than next to her, due to the small size of the courtroom in which the

trial occurred.


       On September 15, 2011 – before the evidentiary hearing – Cherys filed an

amended motion for summary judgment.1 Shortly thereafter on November 7, 2011,

fearing that he would be deported before the District Court could issue its ruling, Cherys

filed a motion to vacate his sentence under Federal Rule of Civil Procedure 60, or

alternatively, requested a writ of audita querela. Then, on November 21, 2011, he moved

to convert his § 2255 motion to a petition for a writ of error coram nobis. The

Government noticed its intent to deport Cherys on December 1, 2011, and on December

14, 2011 – the day of the evidentiary hearing – Cherys moved to stay his deportation.


       On February 9, 2012, the District Court denied Cherys’s motion for summary

judgment, his motion to vacate under Rule 60, and his motion to convert the § 2255

motion to a petition for a writ of error coram nobis. With respect to the motion to convert,

the District Court held that under Kumarasamy v. Attorney General of the United States,

453 F.3d 169, 172 (3d Cir. 2006), Cherys remained “in custody” for purposes of § 2255

because he was being held subject to deportation, and because his sentence included a

       1
           The original motion was filed the day before.

                                              5
five-year period of supervised release. The next day, the District Court denied Cherys’s

motion to stay his removal, and on March 19, 2012, dismissed the case as moot because

Cherys had been deported to the Dominican Republic.


       Cherys filed a notice of appeal on the same day, appealing the District Court’s

denial of his motion to convert and his Rule 60 motion, and its dismissal of his § 2255

motion as moot. He also filed a motion for reconsideration with the District Court. We

granted Cherys’s unopposed motion to stay his appeal pending resolution of the motion

for reconsideration. The District Court held a hearing on the motion to reconsider on

September 5, 2012, at which the Government conceded that Cherys’s removal did not

moot his § 2255 motion. Cherys’s counsel agreed, but argued that if the motion were

moot, it should be converted to a petition for a writ of error coram nobis. The District

Court orally granted the motion for reconsideration as to the mootness question, but

despite a lengthy colloquy with counsel as to whether the appropriate vehicle was habeas

corpus or coram nobis, did not indicate at the hearing under which theory it was

proceeding. It then orally denied relief on the merits, finding that Cherys had failed to

show that Paiewonsky’s performance fell below an objective standard of reasonableness.


       Cherys moved in the District Court for a COA on September 17, 2012, and filed a

second notice of appeal on October 8, 2012, based on the District Court’s oral denial of

relief. The District Court memorialized its findings and rulings in a February 20, 2013

memorandum and order, in which it clearly converted Cherys’s § 2255 motion to a coram


                                             6
nobis petition and found that Paiewonsky provide constitutionally effective assistance.

The District Court did not address whether a reasonable likelihood existed that Cherys

was incompetent at the time of trial. It also granted a COA on the following questions:

(1) whether Cherys was denied constitutionally effective assistance of counsel; and (2)

whether there was a reasonable probability that Cherys was tried while incompetent. On

February 27, 2013, Cherys moved for this Court to expand the COA to encompass the

District Court’s decision to convert the § 2255 motion to a petition for writ of error coram

nobis.


         On May 8, 2013, we issued an order directing the parties to brief: (1) whether and

to what extent a COA is required to proceed with this appeal; (2) to the extent a COA is

required, whether the issue identified in Cherys’s motion to expand already falls within

the scope of the District Court’s COA; and (3) whether the District Court’s February 20,

2013 order is properly before us, in light of the fact that both of Cherys’s notices of

appeal were filed before that decision was entered. The parties were also free to address

any other issues they deemed appropriate.


                                              II


         The District Court had jurisdiction pursuant to 48 U.S.C. § 1612(a). We have

jurisdiction pursuant to 28 U.S.C. § 2253. “In a federal habeas corpus proceeding, we

exercise plenary review of the district court’s legal conclusions and apply a clearly



                                              7
erroneous standard to the court’s factual findings.” United States v. Lilly, 536 F.3d 190,

195 (3d Cir. 2008) (quoting Lambert v. Blackwell, 134 F.3d 506, 512 (3d Cir. 1997)).


                                            III


       Cherys asserts two discrete grounds for relief: (1) that he was denied the effective

assistance of counsel, in violation of the Sixth Amendment; and (2) that he was tried and

convicted while legally incompetent due to a mental disease or defect, in violation of the

Due Process Clause of the Fifth Amendment. We find neither claim persuasive. But

before reaching the merits, it is necessary first to untangle the procedural morass in which

we find this case.


                                             A


       When a District Court dismisses a motion to vacate under § 2255, it “must issue or

deny a certificate of appealability.” Rules Governing § 2255 Proceedings, Rule 11, 28

U.S.C. foll. § 2255. A defendant seeking to appeal a denial of a writ of error coram

nobis, however, need not seek a COA. United States v. Baptiste, 223 F.3d 188, 189 n.1

(3d Cir. 2000) (per curiam). The parties agree that whether a COA is necessary in this

case turns on whether the District Court erred in converting the § 2255 motion. We hold




                                             8
that the District Court so erred, but that this error was harmless.2


       A petition for a writ of error coram nobis provides a means to “collaterally attack a

criminal conviction for a person . . . who is no longer ‘in custody’ and therefore cannot

seek habeas relief under 28 U.S.C. § 2255.” Chaidez v. United States, --- U.S. ---, ---,

133 S. Ct. 1103, 1106 n.1 (2013) (citing United States v. Morgan, 346 U.S. 502, 507,

510-11 (1954)). Coram nobis relief is “generally not available to those ‘in custody.’”

United States v. Rhines, 640 F.3d 69, 71-72 (3d Cir. 2011). As we recognized in

Kumarasamy, “what matters for the ‘in custody’ requirement is whether the petitioner

was in custody at the time his habeas petition was filed. As long as the petitioner was in

custody when he filed his petition, a subsequent release from custody (e.g. a subsequent

removal) will not divest the court of jurisdiction.” 453 F.3d 169, 173 n.7 (3d Cir. 2006)

(emphasis in original) (citation omitted) (citing Lee v. Stickman, 357 F.3d 338, 342 (3d

Cir. 2004)).


       We conclude that the District Court erred in converting Cherys’s § 2255 motion to

a petition for a writ of error coram nobis. Cherys was indisputably “in custody” within

the meaning of § 2255 when he filed the motion, and therefore it should have, at all

       2
        The District Court limited its COA to the merits of Cherys’s Fifth and Sixth
Amendment claims. Therefore, the propriety of the District Court’s conversion of the §
2255 motion is not within the scope of the COA issued. But answering the antecedent
question of whether a COA is required for this appeal necessarily requires us to answer
the question Cherys seeks to add, viz., whether the District Court erred in converting the
motion. Accordingly, we will grant Cherys’s motion to expand the COA so that we can
address this question.

                                              9
times, proceeded under § 2255. With that said, the error was harmless because the

District Court granted a COA. Accordingly, the District Court’s order converting the

motion does not preclude us from reaching the merits.3


                                             B


       The District Court concluded that Cherys’s trial counsel was not constitutionally

ineffective because she did not have reasonable cause to question his competency. We

will affirm.


       To succeed on his ineffective assistance of counsel claim, Cherys must make two

showings: first, that his trial counsel’s performance fell below an objective standard of

reasonableness; and second, that he was prejudiced by counsel’s deficiency. Thomas v.

Varner, 428 F.3d 491, 499 (3d Cir. 2005) (quoting Strickland v. Washington, 466 U.S.

668, 687 (1984)). With respect to the “deficient performance” prong of the analysis, he

must overcome a “strong presumption” that counsel’s conduct was within the scope of



       3
         We also directed the parties to address whether the District Court’s February 20,
2013 order is properly before us in light of the fact that Cherys’s notices of appeal were
filed prior to that date. “[A]bsent a showing of prejudice . . . , a premature notice of
appeal, filed after disposition of some of the claims before a district court, but before
entry of final judgment, will ripen upon the court’s disposal of the remaining claims.”
DL Res., Inc. v. FirstEnergy Solutions Corp., 506 F.3d 209, 215 (3d Cir. 2007) (quoting
Lazy Oil Co. v. Witco Corp., 166 F.3d 481, 585 (3d Cir. 1999)) (internal quotation marks
omitted); see also Cape May Greene, Inc. v. Warren, 698 F.2d 179, 184-85 (3d Cir.
1983). The Government does not claim that it will suffer prejudice from our
consideration of the February 20 order. Accordingly, we conclude that it is properly
before us.

                                             10
reasonable professional assistance. Id.


       We have held that trial counsel should request a competency evaluation when she

has “reason to doubt [her client’s] competence to stand trial.” United States v. Haywood,

155 F.3d 674, 680 (3d Cir. 1998). If at any point in a criminal proceeding prior to

sentencing such reason arises, counsel for the defendant (or for the Government) may

move for a hearing to determine the defendant’s mental competency. 18 U.S.C. §

4241(a). The District Court “shall grant the motion, or shall order such a hearing on its

own motion,” if “reasonable cause” exists to believe that the defendant is “unable to

understand the nature and consequences of the proceedings against him or to assist

properly in his defense” due to a mental disease or defect. Id. “Section 4241 ‘provides a

mandatory process’ that is ‘intended to culminate in a record-based judicial determination

of competence.’” United States v. Graves, 722 F.3d 544, 547 (3d Cir. 2013) (quoting

United States v. Haywood, 155 F.3d 674, 680 (3d Cir. 1998)).


       The District Court found that Paiewonsky did not have reason to doubt Cherys’s

competency. In attacking this finding, Cherys relies heavily on testimony establishing

that Cherys’s trial took place in a “small courtroom,” in which Cherys had to sit behind

counsel rather than next to her and could not speak directly with her. Because her back

was to him, Paiewonsky “lacked the ability to observe Cherys on a continual basis,” and

allegedly did not have the opportunity to speak with him before each day of trial.

Appellant’s Br. at 28. But Cherys’s contention is contradicted by Paiewonsky’s


                                            11
testimony: she met with him “several times” prior to trial, JA at 127, including

immediately before trial began, at which time Paiewonsky observed nothing abnormal or

different about him, JA at 128-29. She met with him “every day in the courtroom”

during the course of the trial, never observing anything unusual about his behavior. JA at

129. She did not know he was on antipsychotic medication. And, although she stated that

seating arrangements in the courtroom prevented her from having much interaction with

Cherys during trial, she would “[o]ccasionally . . . look over in his direction” and

observed nothing out of the ordinary. JA at 130-31. At no time had Paiewonsky been

informed, either before or during trial, of Cherys’s psychotic episode in prison. Although

Cherys claims that he continued to suffer hallucinations throughout trial, he has offered

no evidence that the hallucinations caused him to act in such a way as to give Paiewonsky

reasonable cause to believe he was incompetent to stand trial.4




       4
         In Cherys’s view, his pro se filings should have given Paiewonsky reason to
doubt his competency, and even if she did not have actual knowledge of the filings, we
should deem her constructively aware of all documents that make up the trial record. The
District Court acknowledged this peculiarity, stating at the evidentiary hearing that:

       It [was] only after the adverse verdict that the defendant communicated
       with the Court at some point. And I think that the petitioner’s counsel
       raises a good point, that it’s in the record, and one would presume that
       counsel should be aware of it. I think even the government concedes that
       counsel should be aware of it. But that alone is not dispositive. It raises a
       question, but it’s not dispositive of the issue.


                                             12
       Failure to meet either prong of the Strickland analysis is fatal to a claim of

ineffective assistance of counsel. See, e.g., Marshall v. Hendricks, 307 F.3d 36, 108 (3d

Cir. 2002). We conclude that the District Court did not err in finding that Paiewonsky’s

trial performance was constitutionally effective. Accordingly, we will affirm.


                                              C


       In addition to his Sixth Amendment ineffective assistance of counsel claim,

Cherys argues that he was tried and convicted while incompetent to stand trial due to a

mental disease or defect, in violation of the Due Process Clause of the Fifth Amendment.

This presents a separate ground for relief, but the District Court did not address whether

Cherys was incompetent at the time of trial.5


       Conviction of a legally incompetent person violates the Due Process Clause. Pate

v. Robinson, 383 U.S. 375, 378 (1966). We have held that to be competent to stand trial,

a defendant must “(1) have ‘sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding;’ and (2) possess ‘a rational as well as factual



JA at 217 (paragraph break omitted). Even if we were to impute to Paiewonsky
constructive knowledge of these filings, they alone would not give reasonable cause
because, as the District Court concluded, Cherys’s claims of incompetence were arguably
suspect given that he contacted the District Court only after receiving an adverse verdict.
JA at 218.
       5
         Although Cherys suggests that we could remand with instructions to consider
this question in the first instance, he does not claim that the factual record requires further
development. Indeed, he asserts – and we agree – that the record as it stands is sufficient
to determine whether he is entitled to relief.

                                              13
understanding of the proceedings against him.’” Hull v. Kyler, 190 F.3d 88, 105 (3d Cir.

1999) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam)); see also

United States v. Leggett, 162 F.3d 237, 242 (3d Cir. 1998). “No predetermined formula”

exists to guide a court in evaluating a defendant’s competency, but relevant factors

include evidence of irrational behavior by the defendant, his demeanor at trial, and

whether a medical professional has evaluated his competence to stand trial. Id. Where,

as here, the question of competency was raised before the trial court but no facts were

found nor hearing held, the Government bears the burden on habeas review to show that

reasonable cause to question the defendant’s competence did not exist. United States v.

Hollis, 569 F.2d 199, 206 (3d Cir. 1977).


       The Government has carried its burden. Cherys’s trial counsel testified that she

observed nothing unusual about him in their interactions before and during trial. She

testified that they conversed in Spanish throughout the trial, that he had no problem

comprehending the proceedings, and that he spoke softly and was not anxious or

aggressive. The District Court found her testimony credible. Presumably, if throughout

the trial Cherys had been unable to stay awake or continued to suffer hallucinations

commensurate with those that justified placing him in the SHU, this would have been

noticed by Paiewonsky, by counsel for the Government, or indeed by the Court itself – all

of whom had the authority to request a competency evaluation. See 18 U.S.C. § 4241(a).


       To be legally incompetent, Cherys’s mental illness must have rendered him unable


                                            14
to consult with his attorney or understand the proceedings at the time of trial. Leggett,

162 F.3d at 237. We recognize that determining post hoc whether a defendant was

competent at the time of trial is a challenging endeavor. See Appel v. Horn, 250 F.3d

203, 217 (3d Cir. 2001) (quoting Pate, 383 U.S. at 387). That is doubly true here because

Cherys’s trial occurred fifteen years ago. Nonetheless, the Government’s evidence

indicates that Cherys was able to meaningfully participate in the proceedings and to assist

in his defense. Accordingly, we hold that reasonable cause to question Cherys’s

competence did not exist at the time of trial.


                                             IV


       For the reasons set forth above, we will affirm the District Court’s dismissal of

Cherys’s motion to vacate under 28 U.S.C. § 2255.




                                             15
