FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT November 20, 2014
Elisabeth A. Shumaker
GONZALO GOMEZ, Clerk of Court
Petitioner - Appellant,
v. No. 14-1347
(D.C. No. 1:13-CV-02979-LTB)
LINDA MACGREW; THE ATTORNEY (D. Colorado)
GENERAL OF THE STATE OF
COLORADO,
Respondents – Appellees.
ORDER AND JUDGMENT*
Before GORSUCH, MURPHY and McHUGH, Circuit Judges.
After examining Appellant=s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
On October 30, 2013, Petitioner Gonzalo Gomez, appearing pro se, filed a Motion
to Vacate, and Request for Expedited Hearing, Under 28 U.S.C. § 1651, Writ of Error
* This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Coram Nobis, the All Writs Act. Mr. Gomez sought to challenge the validity of two state
court drug convictions (State Convictions). At the time of filing, Mr. Gomez was
incarcerated in the United States Penitentiary at Victorville in Adelanto, California, on
unrelated federal charges. The district court issued an order directing Mr. Gomez to cure
deficiencies in his filing. Specifically, the district court informed Mr. Gomez that any
challenge to the State Convictions must be brought in a habeas corpus action, and it
therefore ordered Mr. Gomez to amend his filing to comply with the requirements of 28
U.S.C. § 2254.
In accordance with the district court’s instructions, Mr. Gomez filed an amended
petition pursuant to § 2254. In his amended filing, Mr. Gomez conceded that the
sentences imposed for the State Convictions were long expired. The State filed a pre-
answer response, arguing the district court lacked jurisdiction because Mr. Gomez was
not in custody under the convictions he was challenging, as required by 28 U.S.C.
§ 2254(a). See Maleng v. Cook, 490 U.S. 488, 490–91 (1989) (requiring that a “habeas
petitioner be ‘in custody’ under the conviction or sentence under attack at the time his
petition is filed”). In his reply brief, Mr. Gomez argued he satisfied the “in custody”
requirement because the State Convictions were used to enhance the unrelated federal
sentence he was then serving in California. Relying on the Supreme Court’s ruling in
Maleng, the district court rejected Mr. Gomez’s claim that he had satisfied the “in
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custody” requirement and dismissed the petition for lack of jurisdiction.1 See 490 U.S. at
491 (“In this case, the Court of Appeals held that a habeas petitioner may be ‘in custody’
under a conviction whose sentence has fully expired at the time his petition is filed,
simply because that conviction has been used to enhance the length of a current or future
sentence imposed for a subsequent conviction. We think that this interpretation stretches
the language ‘in custody’ too far.”). Mr. Gomez appeals.2
On appeal, Mr. Gomez argues the district court erred when it directed him to refile
his petition for writ of coram nobis as a petition for habeas corpus pursuant to § 2254.3
1
The district court also declined to issue a certificate of appealability. As
explained below, Mr. Gomez’s appeal does not proceed under 28 U.S.C. § 2254. As such,
he is not required to obtain a certificate of appealability prior to invoking this court’s
appellate jurisdiction. See 28 U.S.C. § 2253(c)(1) (directing that “an appeal may not be
taken to the court of appeals from . . . the final order in a habeas corpus proceeding in
which the detention complained of arises out of process issued by a State court” unless
the petitioner first obtains a certificate of appealability (emphasis added)).
2
The district court entered judgment against Mr. Gomez on July 25, 2014. Thirty-
four days later, on August 28, 2014, the district court docketed Mr. Gomez’s pro se
notice of appeal. See Fed. R. App. P. 4(a)(1)(A), (C) (indicating notice of appeal must be
filed within thirty days of entry of judgment for an appeal from a denial of a writ of
coram nobis). On jurisdictional review, this court issued an order to show cause why Mr.
Gomez’s appeal should not be dismissed as untimely under Rule 4 of the Federal Rules
of Appellate Procedure. In response, Mr. Gomez submitted a sworn declaration invoking
the “prison mailbox rule” pursuant to Rule 4(c)(1) and 28 U.S.C. § 1746. Mr. Gomez
declared that he deposited his notice of appeal in the prison mailing system on August 23,
2014, within the thirty-day timeframe for a timely appeal. Accordingly, Rule 4 poses no
bar to our appellate jurisdiction in this matter.
3
Because Mr. Gomez appears before the court pro se, we will construe his
arguments liberally, but will not step into the role of advocate. See Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991).
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He asserts a writ of coram nobis was the correct vehicle to challenge the State
Convictions after the sentences for those convictions had expired. Generally, the writ of
coram nobis allows a convict to attack the validity of a conviction for which he is no
longer in custody. See Rawlins v. Kansas, 714 F.3d 1189, 1196 (10th Cir. 2013); see also
United States v. Morgan, 346 U.S. 502, 510–11 (1954) (explaining the writ of coram
nobis allows a convict to attack a conviction when relief is otherwise precluded by the “in
custody” requirement of 28 U.S.C. § 2255). The district court erred in directing Mr.
Gomez to refile his petition for writ of coram nobis as a petition for habeas corpus relief
because, as the district court itself noted, Mr. Gomez cannot seek habeas relief from the
State Convictions for which he is no longer in custody. But for this erroneous instruction
from the district court, Mr. Gomez’s suit would have proceeded solely as a petition for
writ of coram nobis. Accordingly, we will construe Mr. Gomez’s argument on appeal as
challenging the district court’s effective denial of his petition for writ of coram nobis.
“When reviewing a denial of a coram nobis petition, we review questions of law
de novo, but review the district court’s decision to deny the writ for an abuse of
discretion.” United States v. Lester, 557 F. App’x 788, 791 (10th Cir. 2014)
(unpublished) (internal quotation marks omitted).4 In this case, the district court
effectively denied Mr. Gomez’s petition for writ of coram nobis because it erroneously
concluded that his claims for relief could only be brought pursuant to a habeas corpus
4
Though we do not usually cite unpublished dispositions of this circuit, we do so
here because it provides a recent and accurate statement of circuit authority.
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petition under § 2254. This legal error constituted an abuse of discretion that would
usually mandate reversal. See Flood v. ClearOne Commc’ns, Inc., 618 F.3d 1110, 1118
(10th Cir. 2010) (holding that a district court’s ruling based on legal error constitutes an
abuse of discretion).
Nonetheless, we affirm the district court’s dismissal of Mr. Gomez’s petition for
writ of coram nobis on an alternative ground apparent from the record. See United States
v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994) (“We are free to affirm a district court
decision on any grounds for which there is a record sufficient to permit conclusions of
law, even grounds not relied upon by the district court.” (internal quotation marks
omitted)). It is the long-settled law of this circuit that “federal courts have no jurisdiction
to issue writs of coram nobis with respect to state criminal judgments.” Rawlins, 714 F.3d
at 1196 (internal quotation marks omitted). Although the All Writs Act permits federal
courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions
and agreeable to the usages and principles of law,” 28 U.S.C. § 1651(a), we have long
looked to the common law to determine which writs are “agreeable to the usages and
principles of law,” Rawlins, 714 F.3d at 1196 (internal quotation marks omitted). “[T]he
common law scope of coram nobis was a writ from the judgment-issuing court to itself,
granting itself power to reopen that judgment. It is not a writ that one court may issue to
another.” Id. Thus, because the State Convictions were not issued by any federal court, no
federal court has jurisdiction to reexamine them through a writ of coram nobis.
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For the above reasons, we VACATE the judgment of the district court and
REMAND this case to the District of Colorado with instructions to dismiss Mr. Gomez’s
petition for writ of coram nobis for lack of jurisdiction. Further, we GRANT
Mr. Gomez’s motion for leave to proceed in forma pauperis.
ENTERED FOR THE COURT
Carolyn B. McHugh
Circuit Judge
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