United States Court of Appeals

for the Fifth Circuit

No. 21-10167

Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Stephen Lynn Hawks,

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:99-CR-22-1

Before Jolly, Willett, and Engelhardt, Circuit Judges.

Per Curiam:*

Stephen Lynn Hawks, a former federal prisoner, was convicted in 

2000 for failure to pay child support under 18 U.S.C. § 228(a)(3). Later that 

year, he unsuccessfully petitioned for habeas relief. In 2021, he filed a pro se 

motion under Federal Rule of Civil Procedure 60(d)(3), alleging that his 

* Pursuant to 5th Circuit 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opinion should not be published and is not precedent except under the limited 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 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 12, 2022

Lyle W. Cayce

Clerk

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conviction and the restitution portion of his sentence were procured by fraud 

upon the court. The district court denied the motion. Hawks now appeals.

Because Hawks’s Rule 60 motion alleged fraud on the court in 

connection with his conviction rather than with his previous habeas 

proceeding, federal courts would ordinarily treat such a pro se motion as a 

successive habeas petition under 28 U.S.C. § 2255. See United States v. 

Cardenas, 13 F.4th 380, 384 (5th Cir. 2021); Gonzalez v. Crosby, 545 U.S. 524, 

532 (2005). However, because Hawks is no longer incarcerated, his motion 

is properly characterized as a petition for a writ of coram nobis. See United 

States v. Hay, 702 F.2d 572, 573–74 (5th Cir. 1983). 

Treating Hawks’s motion as such a petition, we conclude that the 

district court rightly denied relief. A coram nobis petition may not be used to 

relitigate claims that have already been rejected in a proceeding brought 

under § 2255. United States v. Esogbue, 357 F.3d 532, 535 (5th Cir. 2004). 

Hawks’s claim that his conviction was obtained by fraud upon the court was 

considered and rejected in the habeas action he filed in 2000. He is not 

entitled to another opportunity to seek postconviction relief on this ground. 

Hawks’s appellate brief further alleges that in 2002, government 

officials unconstitutionally coerced him into giving up his right to a parole 

revocation hearing. But Hawks did not raise this issue before the district 

court and has thus not adequately preserved it for appellate review. See 

McClellon v. Lone Star Gas Co., 66 F.3d 98, 100 (5th Cir. 1995). Finally, 

Hawks alleges that the State of Texas and his ex-wife (to whom he owed the 

child support of which he was convicted of not paying) agreed between 

themselves in 2006 to relinquish their rights to seek child support arrears. 

Even assuming that is true, however, an agreement executed in 2006 does 

not invalidate Hawks’s 2000 conviction for failure to pay child support due 

at that time. Insofar as Hawks’s filings can be construed as challenging his 

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restitution obligation imposed as part of his federal sentence, “we have 

denied numerous attempts to collaterally attack a restitution order,” United 

States v. Parker, 927 F.3d 374, 381 (5th Cir. 2019), including via a petition for 

a writ of coram nobis, see Campbell v. United States, 330 F. App’x 482, 483 

(5th Cir. 2009) (“A district court lacks jurisdiction to a modify restitution 

order under § 2255 [or] a writ of coram nobis”). Nor may Hawks challenge 

the restitution order via a writ of audita querela, since he does not concede 

that the order was valid at the time it was entered. See United States v. Miller, 

599 F.3d 484, 489 (5th Cir. 2010).

AFFIRMED.

Case: 21-10167 Document: 00516317189 Page: 3 Date Filed: 05/12/2022