United States v. Gonzalez

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 8, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-20673 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS GONZALEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-02-CV-1564 (H-84-CR-109-1) --------------------

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Luis Gonzalez, federal prisoner # 04434-078, pleaded guilty

to conspiracy to violate the federal narcotics laws in violation

of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B) and on July 31,

1984, was sentenced to two years’ imprisonment. He seeks to

challenge the legality of his 1984 conviction and sentence by way

of the writ of coram nobis, pursuant to the All Writs Act, 28

U.S.C. 1651(a), because that prior conviction, for which he has

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-20673 -2-

long since served his sentence, was used to enhance his current

life sentence imposed in 1993 for possession with intent to

distribute cocaine. Gonzalez seeks a certificate of

appealability (COA) to appeal the district court’s summary

dismissal of his petition, construed by the district court as a

28 U.S.C. § 2255 motion.

Gonzalez argues that the district court erred in construing

his petition for a writ of coram nobis as a 28 U.S.C.

§ 2255 motion and in failing to address his constitutional

claims. He contends that his illegal conviction has clearly

created ongoing civil disabilities because it has had the effect

of causing him to be subjected to an enhanced penalty, a life

sentence, for the sentence which he is presently serving. He

also argues that the deprivation of his first appeal as of right

is the type of error that justifies relief pursuant to the writ

of coram nobis. He contends that he informed his counsel of his

desire to appeal and that counsel failed to file an appeal.

Because Gonzalez is no longer in custody for his 1984

conviction, he cannot challenge it by way of a 28 U.S.C. § 2255

motion. Pack v. Yusuff, 218 F.3d 448, 454 n.5 (5th Cir. 2002).

Also, as a general rule, Gonzalez cannot challenge his current

life sentence through a 28 U.S.C. § 2255 motion on the grounds

that his prior conviction was unconstitutionally obtained.

Daniels v. United States, 532 U.S. 374, 382 (2001)(denying right

to challenge conviction under Armed Career Criminal Act (ACCA) No. 02-20673 -3-

through a motion under 28 U.S.C. § 2255 on ground that prior

convictions were unconstitutionally obtained). Daniels did not

foreclose any other channels of collateral review still available

to challenge prior convictions, such as the option of filing a

federal coram nobis petition. 532 U.S. at 382.

A COA is required for an appeal from a final order in a

habeas corpus proceeding in which the detention complained of

arises out of process issued by a State court or a final order in

a proceeding under section 2255. 28 U.S.C. § 2253(c). Because

an appeal from an order denying coram nobis relief does not fall

within either of these categories, Gonzalez’s request for a COA

is DENIED AS UNNECESSARY. See United States v. Dyer, 136 F.3d

417, 429 n.32 (5th Cir. 1998)(distinguishing coram nobis remedy

from habeas corpus).

The writ of coram nobis will issue only when no other remedy

is available and when sound reason exists for the petitioner’s

failure to seek appropriate earlier relief. United States v.

Dyer, 136 F.3d 417, 421 (5th Cir. 1998). Gonzalez pleaded guilty

and was sentenced in July 1984. He contends that his counsel

failed to file a direct appeal. On November 16, 1984, Gonzalez

filed a pro se motion for reduction or modification of his

sentence. He did not make any mention of having been denied a

direct appeal. His first mention of this alleged denial of his

right to an appeal is in his petition filed in 2002. He does not

explain why he did not seek relief in a 28 U.S.C. § 2255 motion No. 02-20673 -4-

challenging his 1984 conviction when such relief was available.

No sound reason exists for his failure to seek appropriate

earlier relief. Dyer, 136 F.3d at 421. Gonzalez is not entitled

to coram nobis relief. The judgment of the district court is

AFFIRMED.