UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7316
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COLLIER DOUGLAS SESSOMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. W. Earl Britt,
Senior District Judge. (7:06-cr-00063-BR-1)
Submitted: November 13, 2012 Decided: November 15, 2012
Before NIEMEYER, GREGORY, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Collier Douglas Sessoms, Appellant Pro Se. Jennifer P.
May-Parker, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Collier Douglas Sessoms, a federal prisoner, appeals
the district court’s order dismissing his self-styled “Motion
for [a] Writ of Coram Nobis,” which the court construed as a
petition for a writ of audita querela brought under 28 U.S.C.
§ 1651(a) (2006). * Finding no reversible error, we affirm.
A writ of error coram nobis may be used to vacate a
conviction where there is a fundamental error resulting in
conviction, and no other means of relief is available. United
States v. Morgan, 346 U.S. 502, 509-11 (1954); United States v.
Akinsade, 686 F.3d 248, 252 (4th Cir. 2012). The remedy is
limited, however, to those petitioners who are no longer in
custody pursuant to their convictions. Carlisle v. United
States, 517 U.S. 416, 428-29 (1996); Akinsade, 686 F.3d at 252.
*
“Writs of audita querela and coram nobis are similar, but
not identical.” United States v. Torres, 282 F.3d 1241, 1245
n.6 (10th Cir. 2002) (internal quotation marks omitted).
“Usually, a writ of coram nobis is used to attack a judgment
that was infirm at the time it issued, for reasons that later
came to light.” Id. (internal quotation marks and alteration
omitted). A writ of audita querela, by contrast, “is used to
challenge a judgment that was correct at the time rendered but
which is rendered infirm by matters which arise after its
rendition.” Id. (internal quotation marks omitted). Sessoms’
petition, which challenges his convictions and sentence
following his guilty plea to transmission of child pornography
and transportation of obscene matters over the Internet, appears
to seek relief in the form of writs of error coram nobis and
audita querela.
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Further, a writ of audita querela is not available to
a petitioner when other avenues of relief are available, such as
a motion to vacate under 28 U.S.C.A. § 2255 (West Supp.
2012). Torres, 282 F.3d at 1245; United States v. Johnson, 962
F.2d 579, 582 (7th Cir. 1992). That a petitioner may not
proceed under § 2255 unless he obtains authorization from this
court does not alter this conclusion. See Carrington v. United
States, 503 F.3d 888, 890 (9th Cir. 2007) (“[T]he statutory
limits on second or successive habeas petitions do not create a
‘gap’ in the post-conviction landscape that can be filled with
the common law writs.”).
Sessoms is currently in custody pursuant to his
convictions, and he previously challenged his convictions and
sentence in a § 2255 motion. Although Sessoms’ present
challenges were not raised in his § 2255 motion, he has not
sought authorization from this court to file a second or
successive § 2255 motion. As Sessoms fails to establish the
grounds needed to obtain relief under either writ, we affirm the
district court’s judgment. We deny Sessoms’ motion to extend
the filing time for new evidence and dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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