UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v. 

DANIEL BRYANT YAZZIE, JR.,

 Defendant-Appellant.

No. 09-2223

(D.C. Nos. 1:09-CV-00740-BB-WPL and 

1:02-CR-00785-BB-1)

(D. N.M.)

ORDER AND JUDGMENT*

Before KELLY, McKAY, and LUCERO, Circuit Judges. 

 

 Daniel Bryant Yazzie, Jr., appeals a district court’s denial of his motion to void his 

conviction and release him from custody. Exercising jurisdiction under 28 U.S.C. 

§ 1291, we affirm. 

 In 2003, Yazzie was convicted of a federal crime. He did not appeal his 

 

* The case is unanimously ordered submitted without oral argument pursuant to 

Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not 

binding precedent, except under the doctrines of law of the case, res judicata, and 

collateral estoppel. The court generally disfavors the citation of orders and judgments; 

nevertheless, an order and judgment may be cited under the terms and conditions of 10th 

Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 24, 2010

Elisabeth A. Shumaker 

Clerk of Court
2 

conviction or sentence. In 2009, he filed a motion seeking to void his conviction, citing 

Fed. R. Civ. P. 60(b). Yazzie argued that the trial court lacked jurisdiction and was an 

improper venue, that the prosecuting attorney made fraudulent misrepresentations to the 

court, and that the prosecutor failed to join a necessary party. Determining that 28 U.S.C. 

§ 2255 provides the “exclusive avenue for challenging a federal criminal conviction or 

sentence,” and that Yazzie’s motion could not properly be recharacterized as a § 2255 

petition because it would be time-barred, the district court denied the motion. It later 

denied a subsequent, substantially identical motion for the same reasons, and denied 

Yazzie’s motion to proceed in forma pauperis (“IFP”). Yazzie timely appealed.1

Yazzie has neither challenged the district court’s conclusion that § 2255 is an 

adequate and effective remedy, nor challenged the district court’s decision that his 

motion should not be recharacterized as a § 2255 petition. Instead, he seeks to reassert 

his motion under Rule 60(b). However, Yazzie may not challenge his conviction and 

sentence under Rule 60(b) because “[t]he exclusive remedy for testing the validity of a 

[federal] judgment and sentence, unless it is inadequate or ineffective, is that provided for 

 1

 The district court denied Yazzie a certificate of appealability (“COA”). Because 

the district court treated the motion as a civil proceeding, however, a COA is not 

required. We apply the time limit for filing notices of appeal in civil cases. See Fed. R. 

Civ. P. 4(a)(1)(A). 
3 

in 28 U.S.C. § 2255.” Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965) (per 

curiam).2

 

Construing his pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 

(1972), Yazzie’s second Rule 60(b) motion could be recharacterized as a petition for a 

writ of error coram nobis. But Yazzie is ineligible for a writ of error coram nobis 

because he is currently in custody for the conviction he seeks to challenge. See United 

States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002) (“[A] prisoner may not challenge a 

sentence or conviction for which he is currently in custody through a writ of coram 

nobis.”). 

We therefore AFFIRM the district court’s order denying Yazzie’s motion. 

Because he has failed to demonstrate “the existence of a reasoned, nonfrivolous argument 

on the law and facts in support of the issues raised on appeal,” DeBardeleben v. Quinlan, 

937 F.2d 502, 505 (10th Cir. 1991), we DENY Yazzie’s motion to proceed IFP on 

appeal. 

ENTERED FOR THE COURT 

Carlos F. Lucero 

Circuit Judge 

 2

 Under certain circumstances, however, a federal prisoner may challenge the 

denial of a § 2255 petition under Rule 60(b). See generally Spitznas v. Boone, 464 F.3d 

1213, 1215-16 (10th Cir. 2006).