IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50966

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ELWOOD CLUCK, also known as Jack Cluck,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 5:95-CR-99-1

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Elwood Cluck, federal prisoner # 68640-080, appeals the district court’s 

order denying his motion for leave to file his proposed pleading entitled a 

“motion to vacate and dismiss the prosecutors’ February 7, 2014 letter and 

vacate the judgment dated May 27, 1997 due to lack of subject matter 

jurisdiction and prosecutorial misconduct.” The district court construed the 

proposed pleading as seeking a writ of error coram nobis that would vacate 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

April 19, 2017

Lyle W. Cayce

Clerk

 Case: 15-50966 Document: 00513960123 Page: 1 Date Filed: 04/19/2017
No. 15-50966

2

Cluck’s 1997 sentence of restitution, and it determined that (1) it could not 

modify a restitution order through such a writ; (2) the proposed claims were 

duplicative of those raised by Cluck in earlier proceedings; (3) to the extent 

Cluck sought to raise new claims, he presented no sound reason for his failure 

to seek appropriate relief earlier; and (4) Cluck failed to demonstrate any 

substantial, ongoing civil disability resulting from his allegedly wrongful 

conviction that would warrant granting the extraordinary writ of coram nobis.

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 by 559 U.S. 1046, 

(2010). This court’s “review is limited by the presumption of correctness of 

prior proceedings and the narrow range of claims cognizable in granting the 

remedy sought by [the petitioner].” United States v. Dyer, 136 F.3d 417, 422 

(5th Cir. 1998). Coram nobis relief is available only upon proof that the 

petitioner is suffering civil liabilities as a result of the challenged criminal 

conviction and that the error is of sufficient magnitude to justify the 

extraordinary relief. See id. at 422, 430. “[A] petitioner seeking coram nobis

must exercise ‘reasonable diligence’ in seeking prompt relief.” Id. at 427 

(footnoted citations omitted). Thus, he must provide sound reasons for failing 

to seek appropriate relief earlier. Id. at 422.

Cluck did not make the requisite showings in the district court. We 

conclude that the district court did not abuse its discretion by denying Cluck’s 

motion sua sponte. See Santos-Sanchez, 548 F.3d at 330. We do not address 

challenges to the Government’s enforcement efforts that were not preserved 

below. See Nunez v. Allstate Ins. Co., 604 F.3d 840, 846 (5th Cir. 2010).

The district court’s order is AFFIRMED. All pending motions are 

DENIED.

 Case: 15-50966 Document: 00513960123 Page: 2 Date Filed: 04/19/2017