United States Court of Appeals

Fifth Circuit



## FILED

January 16, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 03-20354

_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

AMBROSE ONYE ESOGBUE,

Defendant - Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-93-CR-257-1

_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Ambrose Onye Esogbue, pro se

, appeals th e district court’s

dismissal, for lack of jurisdiction, of his petition for a writ of

error coram nobis

. We VACATE the judgment of dismissal and REMAND

for further proceedings.

I

Esogbue, a native and citizen of Nigeria, was co nvicted of

conspiracy to defraud the United States and wire fraud in 1994. He

was sentenced to 37 months’ imprisonment and three years’

supervised release. This Court affirmed the judgment and sentence

on direct appeal in an unpublished opinion filed on February 13,

1996. In September 1996, while he was incarcerated, Esogbue filed

a motion under 28 U.S.C. § 2255, which was denied on June 26, 1997.2

The district court, as well as this Court, denied Esogbue’s request

for a certificate of appealability.

Esogbue was released to Immigration and Naturalization Service

(“INS”) custody on December 1, 1996. In January 1997, Esogbue was

ordered deported. He appealed, and two years later his deportation

case was remanded. He was detained by the INS during the pendency

of his appeal. On remand, Esogbue was again ordered deported and

again he appealed. His appeal was dismissed. Esogbue filed

motions for a s tay of deportation and for reconsideration, which

were granted, and his appeal was reinstated. In November 2000,

Esogbue was released from INS custody on bail.

In June 2001, after the completion of his term of supervised

release, Esogbue filed a petition for a writ of error coram nobis

in the same court in which he was convicted. I n his coram nobis

petition, Esogbue sought to set aside his 1994 conviction on the

bases of ineffective ass istance of counsel and violation of the

Vienna Convention, so as to avoid deportation. The Government

responded, arguing that his petition should be denied because

entitlement to relief under the All Writs Act, 28 U.S.C. § 1651, is

available only to individuals who have no remedy at law. The

Government argued that Esogbue had a remedy at law

-- a successive

motion under 28 U.S.C. § 2255

-- and that the district court lacked

jurisdiction to grant him leave to file a successive § 2255 motion.

The district court, without explanation, dismissed Esogbue’s3

petition for lack of jurisdiction. Esogbue filed a timely notice

of appeal.

II

Esogbue argues that the district court erred when it

determined that it lacked jurisdiction to entertain his petition.

He argues that his petition was properly filed in the district

court, as it is the court that originally entered judgment against

him. Further, he argues that the district court had jurisdiction

to hear his petition because he is no longer in custody. The

Government argues that the distri ct court properly dismissed

Esogbue’s petition for a writ of error coram nobis

, because Esogbue

deliberately bypassed an available legal remedy -- an application

to file a successive motion for relief under 28 U.S.C. § 2255. The

Government argues further that Esogbue presented no valid reasons

for not attempting to pursue a successive motion for § 2255 relief,

and that Esogbue did not advance any errors of a fundamental

character.

“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 w here the petitioner can demonstrate

civil disabilities as a consequence of the conviction, and that the

challenged error is of sufficient magnitude to justify the

extraordinary relief.” J imenez v. Trominski

, 91 F.3d 767, 768 (5th

Cir. 1996); see also United States v. P eter , 310 F.3d 709, 712

(11th Cir. 2002) (“A writ of error coram nobis is a remedy4

available to vacate a conviction when the petitioner has served his

s entence and is no longer in custody, as is required for postconviction relief under 28 U.S.C. § 2255.”).

Although the district court d id not assign reasons for its

conclusion that it lacked jurisdiction, it is likely that the court

was persuaded by the Government’s argument that Esogbue’s motion

must be dismissed for lack of jurisdiction because he did not seek

permission from this Court to file a successive § 2255 motion.

However, this argument is flawed, because Esogbue was no longer in

custody when he sought coram nobis relief; therefore, the

alternative legal remedy of a successive § 2255 motion was not

available to him at that time . The Supreme Court has held that a

movant is not “in custody” under a conviction for the purpose of §

2254 relief where the sentence imposed for that conviction has

fully expired. M aleng v. Cook

, 490 U.S. 488, 490-91 (1989).

Maleng ’s analysis applies equally when a movant is no longer in

federal custody for the purpose of § 2255 relief where the sentence

imposed for that conviction has expired. S ee Custis v. United

States

, 511 U.S. 485, 497 (1994); see also United States v.

Truesdale , 211 F.3d 898, 903 (5th Cir. 2000) (“a § 2255 motion is

made by a person in federal custody and a petition for a writ of

error coram nobis is filed by a person who has been released”);

United States v. Dyer , 136 F.3d 417, 422 (5th Cir. 1998) (writ of

coram nobis “has been used as an avenue of collateral attack when

the petitioner has completed his sentence and is no longer ‘in5

custody’ for purposes of seeking relief under either 28 U.S.C. §

2241 or § 2255"). Adverse collateral consequences of a conviction

do not render an individual “in custody.” M aleng

, 490 U.S. at 492.

Deportation is such a collateral consequence. S ee United States v.

Castro

, 26 F.3d 557, 559 n.3, 561 n.8 (5th Cir. 1994). Because

Esogbue filed his petition in the court of his conviction, faces

the collateral consequence of possible deportation, and is no

longer serving his sente nce for his federal conviction, the

district court’s dismissal for lack of jurisdiction was error.

III

Esogbue alleged t he following errors in his petition: (1)

ineffective assistance of counsel fo r (a) failure to move for

suppression of unconstitutionally seized evidence, (b) failure to

move for severance, (c) failure to ad vise against selfincrimination, (d) failure to advise of deportation as a

consequen ce of conviction, (e) failure to request a judicial

recommendation against deportation; and (2) violation of the Vienna

Convention. The writ of error c oram nobis “will issue only to

correct errors resulting in a complete miscarriage of justice.”

Jimenez , 91 F.3d at 768 (footnote omitted). Our court has held

that ineffective assistance of counsel, if proven, can be grounds

for coram nobis relief. See Castro , 26 F.3d at 559-60 (reversing

denial of coram nobis petition and remanding for determination of

whether counsel rendered in e ffective assistance by failing to6

advise Castro of th e availability of a judicial recommendation

against deportation or to request same from the sentencing court).

IV

Because the district court erroneously determ ined that it

lacked jurisdiction to con s ider Esogbue’s petition, its order

dismissing the petition is VACATED, and the case is REMANDED for

further proceedings. We express no opinion on the merits of

Esogbue’s petition. W e note, however, that the writ of coram nobis

is an extraordinary remedy to correct errors “of the most

fundamental character.” U nited States v. Morgan

, 346 U.S. 502, 512

(1954). “Continuation of litigation after final judgment and

exhaustion or waiver of any statutory right of review should be

allowed through this extraordinary remedy only under circumstances

compelling such action to achieve justice.” I d

. at 511. A writ of

coram nobis “will issue only when no other remedy is available and

when ‘sound reasons exist[] for failure to seek appropriate earlier

relief.’” U nited States v. Dyer

, 136 F.3d at 422 (quoting Morgan

,

346 U.S. at 512). Thus, in order to establish his entitlement to

the writ, Esogbue must, inter alia

, provide “sound reasons” for his

failure to seek permission to assert the claims alleged in his

coram nobis petition in a successive petition under 28 U.S.C. §

2255 while he was still in custody. An assertion that he would

have been unable to satisfy the stringent standards for filing a

successive § 2255 motion while he was i n custody is not such a

“sound reason.” S ee Godoski v. United States

, 304 F.3d 761, 7637

(7th Cir. 2002) (“ coram nobis is a common-law writ, and it is

entirely inappropriate for the judiciary to invoke the common law

to override limitations enacted by Congress, such as the period of

limitations in § 2255"), cert. denied

, 537 U.S. 1211 (2003); MatusLeva v. United States

, 287 F.3d 758, 761 (9th Cir.) (“A petitioner

may not resort to coram nobis merely because he has failed to meet

the AEDPA’s gatekeeping requirement s. To hold otherwise would

circumvent the AEDPA’s overall purpos e of expediting the

presentation of claims in federal cour t and enable prisoners to

bypass the limitations and successive petitions provisions.”),

cert. denied

, 537 U.S. 1022 (2002). Here, for example, if

Esogbue’s ass ertions amount to hardly more than regurgitation of

the claims he has already presented in his § 2255 petit ion, that

h as been considered and dismissed, or claims that he reasonably

could have raised in that petition, it cannot be said that he has

made the necessary showing of a “complete miscarriage of justice.”

VACATED and REMANDED.