United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 16, 2004
_____________________
Charles R. Fulbruge III
No. 03-20354 Clerk
_____________________
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 the 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 convicted 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on direct appeal in an unpublished opinion filed on February 13,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.
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 stay 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. In his coram nobis
petition, Esogbue sought to set aside his 1994 conviction on the
bases of ineffective assistance 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’s
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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 district 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 where 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.” Jimenez v. Trominski, 91 F.3d 767, 768 (5th
Cir. 1996); see also United States v. Peter, 310 F.3d 709, 712
(11th Cir. 2002) (“A writ of error coram nobis is a remedy
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available to vacate a conviction when the petitioner has served his
sentence and is no longer in custody, as is required for post-
conviction relief under 28 U.S.C. § 2255.”).
Although the district court did 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. Maleng 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. See 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 ‘in
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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.” Maleng, 490 U.S. at 492.
Deportation is such a collateral consequence. See 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 sentence for his federal conviction, the
district court’s dismissal for lack of jurisdiction was error.
III
Esogbue alleged the following errors in his petition: (1)
ineffective assistance of counsel for (a) failure to move for
suppression of unconstitutionally seized evidence, (b) failure to
move for severance, (c) failure to advise against self-
incrimination, (d) failure to advise of deportation as a
consequence of conviction, (e) failure to request a judicial
recommendation against deportation; and (2) violation of the Vienna
Convention. The writ of error coram 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 ineffective assistance by failing to
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advise Castro of the availability of a judicial recommendation
against deportation or to request same from the sentencing court).
IV
Because the district court erroneously determined that it
lacked jurisdiction to consider 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. We note, however, that the writ of coram nobis
is an extraordinary remedy to correct errors “of the most
fundamental character.” United 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.” Id. 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.’” United 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 in custody is not such a
“sound reason.” See Godoski v. United States, 304 F.3d 761, 763
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(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); Matus-
Leva 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 requirements. To hold otherwise would
circumvent the AEDPA’s overall purpose of expediting the
presentation of claims in federal court and enable prisoners to
bypass the limitations and successive petitions provisions.”),
cert. denied, 537 U.S. 1022 (2002). Here, for example, if
Esogbue’s assertions amount to hardly more than regurgitation of
the claims he has already presented in his § 2255 petition, that
has 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.
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