FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 19, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-6037
(D.C. No. 5:06-CR-00096-HE-1)
ALEXANDER CHRISTIAN MILES, (W.D. Okla.)
M.D.,
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before TYMKOVICH, Chief Judge, BALDOCK and HOLMES, Circuit Judges.
_________________________________
Defendant Alexander Christian Miles appeals the district court’s dismissal of
his petition for writ of error coram nobis for lack of jurisdiction. The district court
based its decision on its recharacterization of Mr. Miles’ petition as a second and
successive § 2255 petition that, pursuant to 28 U.S.C. § 2244(b)(3)(A), required prior
authorization from this court in order to proceed.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
To appeal an order dismissing a second or successive § 2255 petition, the
appellant must obtain a Certificate of Appealability (“COA”) from this court.
See 28 U.S.C. § 2253(c); United States v. Harper, 545 F.3d 1230, 1233 (10th Cir.
2008). A § 2255 petition, however, can only be filed by a federal “prisoner in
custody.” 28 U.S.C. § 2255(a); see Rawlins v. Kansas, 714 F.3d 1189, 1195
(10th Cir. 2013). In both his opening brief and a subsequently filed Notice to the
Court Regarding Petitioner’s Custody Status, Mr. Miles asserts that he was released
from federal custody in February 2013 and that the district court therefore erred in
recharacterizing his petition for writ of error coram nobis as a second and successive
§ 2255 petition. He further argues that a COA is not required to appeal the dismissal
of a petition for writ of error coram nobis.
On August 14, 2017, we ordered the United States to file a memorandum brief
addressing whether the district court erred in recharacterizing Mr. Miles’ petition as a
second or successive § 2255 petition and whether a COA was required for this appeal
to proceed. In the brief filed in response to this order, the United States confirmed
that Mr. Miles was released from federal custody in February 2013 with no further
term of supervised release. United States’ Mem. Br. at 5. The United States further
conceded that the district court erroneously characterized Mr. Miles’ pleading as a
second or successive § 2255 motion and that a COA was not required for the court to
consider his appeal. Id. The United States’ concessions are in accord with our
decision in United States v. Carpenter, 598 F. App’x 576, 580-81 (10th Cir. 2015)
(unpublished) (holding district court’s recharacterization of motion for coram nobis
2
to a § 2255 motion was improper when the plaintiff was no longer in federal custody
and that a COA was not necessary to appeal as a result).1
Accordingly, we conclude that we have jurisdiction over Mr. Miles’ appeal
from the district court’s dismissal of his petition for writ of error coram nobis,
without the necessity of a COA. Further, we reverse the district court’s dismissal of
Mr. Miles’ petition, because the dismissal was grounded in the court’s erroneous
recharacterization of the petition, and remand this matter to allow the district court to
rule on Mr. Miles’ petition under the proper standards. In so ruling, we express no
opinion on the merits of Mr. Miles’ petition or the merit arguments Mr. Miles
asserted in his opening brief and the United States advanced in its memorandum
brief.
For the foregoing reasons, the judgment of the district court is reversed and
this matter is remanded for further proceedings consistent with this order.
Entered for the Court
Jerome A. Holmes
Circuit Judge
1
This unpublished decision is not binding precedent in this case, but we find
it has persuasive value with respect to the issues before us. See 10th Cir. R. 32.1(A).
3