* Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule

47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 95-30634

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TERRY JOE WALKER,

Defendant-Appellant.

__________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

(95-CV-0318,75-CR-192)

__________________________________________

October 11, 1996

Before GARWOOD, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

Pursuant to 28 U.S.C. § 2255, Terry Joe Walker, a state

prisoner, challenges, pro se, his expired federal conviction. The

district court held that Walker was no longer “in custody” for §

2255 purposes, and therefore construed the application under the

stricter coram nobis standard. Assuming, without deciding, that

Walker satisfies the § 2255 in custody requirement, his claims are

without merit. We AFFIRM. 
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I.

Terry Joe Walker pled guilty in 1975 to armed robbery of a

bank, in violation of 18 U.S.C. §§ 2113(a) and (d). He was

sentenced to 12 years imprisonment. While serving that sentence,

he moved twice for its reduction or modification, and twice for its

vacation. The motions were denied.

Walker is currently confined in state prison under a

conviction on a different charge. He claims that his federal

conviction enhanced this state sentence, and that, therefore, he is

still “in custody” for § 2255 purposes. Accordingly, he moved for

§ 2255 relief, raising primarily the same claims as in his previous

motions. The district court, holding that Walker was no longer in

such custody, treated his motion as one for coram nobis, and denied

it. 

II.

Here, Walker assumes arguendo that the not-in-custody ruling

was correct. Therefore, the parties address his claims under the

more stringent coram nobis standards. As discussed below,

regarding the standard of review, we will apply that for § 2255 for

analyzing Walker’s claims, the differing views of the parties and

the district court notwithstanding. See United States v. Ho, 1996

WL 490329, *11 (Aug. 27, 1996)(Barksdale, J., dissenting); United

States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir.) (en banc),
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cert. denied, 505 U.S. 1223 (1992). Walker has not forfeited his

§ 2255 claims for the following reasons. 

Although they eventually fall short, Walker presents § 2255

claims. Although his brief assumes arguendo that he is not in such

custody, it can be read to argue in favor of treating his claims as

arising under § 2255. Walker originally moved under § 2255; but,

the district court treated the motion as one in coram nobis.

Because we are necessarily reviewing this holding, and assume,

without deciding, that Walker was “in custody” for § 2255 purposes,

that claim is preserved.

A.

For purposes of 28 U.S.C. §§ 2254 and 2255, “a person is ‘in

custody’ pursuant to a conviction for which the sentence has

expired if he presently is serving a subsequent sentence that was

enhanced by the challenged conviction.” United States v. Woods,

870 F.2d 285, 286 n.1 (5th Cir. 1989). This doctrine was called

into doubt by Maleng v. Cook, 490 U.S. 488 (1989), which held that

habeas petitioners were no longer in custody once they had served

their full sentence, and therefore were no longer eligible for

habeas relief. Id. at 492. However, Allen v. Collins, 924 F.2d

88, 89 (5th Cir. 1991), reaffirmed that a sufficient nexus between

the petitioner’s current sentence and the prior conviction which he

challenges will satisfy the jurisdictional requirement of § 2254.

See also Willis v. Collins, 989 F.2d 187 (5th Cir. 1993)(petitioner
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“in custody” for purposes of § 2254 when there exists a “sufficient

nexus” between the challenged conviction and the current sentence,

such as an enhancement of the current sentence based on the

challenged conviction). 

Walker asserts, and the Government does not dispute, that his

state sentence was enhanced as a result of the challenged federal

conviction. Although our post-Maleng decisions in Allen and Willis

concern § 2254, it is not necessary for purposes of our review to

decide whether they compel finding § 2255 jurisdiction in this

case. If § 2255 is not the appropriate vehicle, then coram nobis

is. Accordingly, we start our analysis by assuming, arguendo, that

§ § 2255 applies.

B.

This court will not disturb an order unless the error affects

the substantial rights of the parties. FED.R.CIV.P. 61. As

hereinafter discussed, the outcome of the claims would have been

the same under § 2255 analysis; therefore, the rights of the

parties were not affected, and the application of coram nobis

standards was harmless error. (Because of this substantial rights

analysis, we bypass the cause and prejudice analysis that arises

customarily for successive § 2255 motions.)

1.

Walker’s FED.R.CRIM.P. 11 claim is without merit. He was

addressed personally during the guilty plea colloquy, and answered
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affirmatively to the court’s questions regarding his wish to plead

guilty, his understanding of the charges against him, and his

understanding of the penalties he faced. Walker points to no

contradictory evidence. Accordingly, his claim does not meet the

constitutional threshold for § 2255.

2.

Likewise, the ineffective assistance of counsel claim is

without merit. To prevail on such a claim, Walker must show

deficient representation that was prejudicial. Strickland v.

Washington, 466 U.S. 668, 687 (1984). His claim that such

ineffective assistance led to an involuntary guilty plea rests on

four grounds. He asserts that his attorney coerced him into

pleading guilty by: (1) misleading him with respect to the

admission of certain evidence at trial; (2) threatening that, if he

were to go to trial, his wife would also be charged on similar

counts; (3) deceiving him with respect to the particular charge to

which he would be pleading guilty; and (4) threatening that appeal

from a jury trial would be impossible. Walker does not claim that

he was unaware that an appeal had not been filed or was otherwise

deceived about the lack of an appeal.

Without having to examine the adequacy of representation, this

claim fails because Walker does not present evidence showing

prejudice, except his conclusory allegations that, but for his

attorney’s advice, he would have insisted on a trial. Without
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more, we will not displace Walker’s sworn declaration at the guilty

plea, which expressed both the voluntariness of his plea, and his

satisfaction with his representation. Blackledge v. Stumpf, 431

U.S. 63, 74 (1977); United States v. Wilkes, 20 F.3d 651, 652 (5th

Cir. 1994). 

III.

For the foregoing reasons, the denial of relief is AFFIRMED.

Walker is cautioned that any additional frivolous petitions filed

by him will invite the imposition of sanctions.

JUDGEMENT AFFIRMED; SANCTIONS WARNING ISSUED