United States v. Gary Byrd

697 F. App'x 431

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 26, 2017
• Docket: 16-31244
• Status: Unpublished

Opinion

PER CURIAM: *

In 1992 Gary Jefferson Byrd, federal prisoner # 07983-035, was convicted of receiving child pornography through the mail and sentenced to serve 10 years in prison. The district court concluded that the most recent action he filed to challenge this conviction was an unauthorized successive 28 U.S.C. § 2255 motion and dismissed it on this basis. Byrd now moves this court for a certificate of appealability (COA), arguing that this action is a writ of coram nobis and that he is entitled to relief on his claims concerning his innocence.

Because Byrd is no longer in custody for the 1992 conviction, he cannot challenge it via a § 2255 motion. See Pack v. Yusuff, 218 F.3d 448, 454 n.5 (5th Cir. 2000). He can, however, bring a writ of coram nobis to challenge this conviction. See United States v. Dyer, 136 F.3d 417, 422 (5th Cir. 1998). Because this action is best classed as sounding in coram nobis, not § 2255, Byrd’s COA motion is DENIED AS UNNECESSARY.

The writ of coram nobis may be used to correct only fundamental errors that result in a complete miscarriage of justice. Dyer, 136 F.3d at 430. Because Byrd’s claims could have been presented sooner, he has not met this standard. See id.

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.