IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60587

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FREDERICK DEMETRIUS DEBERRY,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 1:90-CR-81-1

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Frederick Demetrius Deberry moves for leave to proceed in forma pauperis

(IFP) in appealing the dismissal of his petition for a writ of coram nobis. The

motion to proceed IFP is construed as a challenge to the district court’s

certification that the appeal is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202

(5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(3). This court asks

only whether the appeal involves legal points that are not frivolous. Howard v.

King, 707 F.2d 215, 220 (5th Cir. 1983). 

United States Court of Appeals

Fifth Circuit

F I L E D

May 31, 2012

Lyle W. Cayce

Clerk

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.

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In his petition for a writ of coram nobis, Deberry contends that his

completed federal sentence of 240 months, imposed for several 1991 convictions,

was improperly calculated and unreasonable and caused the adverse collateral

consequence of delaying the start of state sentences that were imposed to run

consecutively to his federal sentence. “The writ of coram nobis is an

extraordinary remedy available to a petitioner no longer in custody who seeks

to vacate a criminal conviction in circumstances where the petitioner can

demonstrate civil disabilities as a consequence of the conviction.” Jimenez v.

Trominski, 91 F.3d 767, 768 (5th Cir.1996), quoted in United States v. Esogbue,

357 F.3d 532, 534 (5th Cir. 2004). Coram nobis is not a substitute for appeal and

may be used to correct only the most fundamental errors. United States v. Dyer,

136 F.3d 417, 422 (5th Cir. 1998) (citing United States v. Morgan, 346 U.S. 502,

512 (1954)). In addition, the writ should issue only when there are “‘sound

reasons . . . for failure to seek appropriate earlier relief.’” Id. (quoting Morgan,

346 U.S. at 512) (ellipsis added). The inability to satisfy the requirements for

filing a successive § 2255 motion is not a sound reason for failing to seek relief

earlier. Esogbue, 357 F.3d at 535. Further, the “regurgitation” of claims

previously presented in a § 2255 motion, or the presentation of claims that

reasonably could have been so raised, does not amount to “the necessary showing

of a complete miscarriage of justice.” Id. We review the district court’s “factual

findings for clear error, questions of law de novo, and the district court’s ultimate

decision to deny the writ [of coram nobis] for abuse of discretion.” 

Santos-Sanchez v. United States, 548 F.3d 327, 330 (5th Cir. 2008), vacated on

other grounds, 130 S. Ct. 2340 (2010). 

Quoting Esogbue, 357 F.3d at 535, the district court concluded that

Deberry’s “submission to the court is ‘hardly more than regurgitation of the

claims he has already presented.’” Deberry concedes that he “has made several

attempts to have his illegal and unreasonable sentence corrected on post

conviction relief.” Whether Deberry’s “submission . . . is ‘hardly more than

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regurgitation’” or Deberry seeks relief not sought in his earlier petitions, Deberry

shows no sound reason for failing to “seek appropriate earlier relief.” Dyer, 136

F.3d at 422. Accordingly, Deberry has not made the necessary showing of a

complete miscarriage of justice. See Esogbue, 357 F.3d at 535.

The district court also found that Deberry had not alleged adverse

collateral consequences resulting from his 240-month federal sentence. Deberry

offers no authority to support his novel assertion that adverse collateral

consequences may arise simply from the length of a completed sentence. Cf.

Esogbue, 357 F.3d at 534 (quoting Jimenez, 91 F.3d at 768, and United States v.

Peter, 310 F.3d 709, 712 (11th Cir. 2002), for the proposition that the writ of

coram nobis is available to attack a “conviction”); cf. also Morgan, 346 U.S. at

504 (noting that the challenged conviction had resulted in the adverse collateral

consequence of a longer sentence for a subsequent crime). 

The district court did not abuse its discretion by denying the writ. 

Because Deberry identifies no nonfrivolous issue for appeal, his IFP motion is

DENIED. See Howard, 707 F.2d at 220. His frivolous appeal is DISMISSED. 

Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.

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