United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 29, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-41257
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee,
v.
ONOFRE GUERRA, JR.
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CV-21
USDC No. 1:77-CR-177
--------------------
Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Onofre Guerra, Jr., federal prisoner # 02826-043, pleaded
guilty to misprision of a felony in violation of 18 U.S.C. § 4,
and in September 1977 he received a three-year suspended sentence
with probation for five years. He was discharged from probation
in August 1981. Guerra seeks to challenge the legality of his
1977 conviction and sentence by way of the writ of coram nobis,
pursuant to the All Writs Act, 28 U.S.C. 1651(a), because that
conviction was used to enhance his current 20-year sentence
imposed in 1995 for conspiracy to possess with intent to
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 CIR. R. 47.5.4.
No.
-2-
distribute marajuana and money laundering. Guerra seeks a
certificate of appealability (COA) to appeal the district court’s
dismissal of his petition.
Guerra contends that the district court erred by denying him
coram nobis relief without addressing his constitutional claims.
He asserts that his guilty plea to misprision was involuntary
because he was not advised of the benefits he could have received
under the Youth Corrections Act, former 18 U.S.C. § 5010. Guerra
argues that his misprision conviction constituted a miscarriage
of justice because it caused him to receive an enhanced penalty
for the 1995 sentence that he is presently serving.
Because Guerra is no longer in custody for his 1977
conviction, he cannot challenge it by way of a 28 U.S.C. § 2255
motion. See Pack v. Yusuff, 218 F.3d 448, 454 n.5 (5th Cir.
2000). Also, as a general rule, Guerra cannot challenge his
current sentence through a § 2255 motion on the grounds that his
prior conviction was unconstitutionally obtained. See Daniels v.
United States, 532 U.S. 374, 382 (2001) (denying right to
challenge conviction under Armed Career Criminal Act through a §
2255 motion on grounds that prior convictions were
unconstitutionally obtained). Daniels did not foreclose any
other channels of collateral review still available to challenge
prior convictions, such as the option of filing a federal coram
nobis petition. 532 U.S. at 382.
A COA is required for an appeal from a final order in a
habeas corpus proceeding in which the detention complained of
arises out of process issued by a state court or a final order in
No.
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a proceeding under § 2255. 28 U.S.C. § 2253(c). Because an
appeal from an order denying coram nobis relief does not fall
within either of these categories, Guerra’s request for a COA is
DENIED AS UNNECESSARY. See United States v. Dyer, 136 F.3d 417,
429 n.32 (5th Cir. 1998) (distinguishing coram nobis remedy from
habeas corpus).
The writ of coram nobis will issue only when no other remedy
is available and when sound reason exists for the petitioner’s
failure to seek appropriate earlier relief. Dyer, 136 F.3d at
422. Guerra pleaded guilty of misprision, for which he was
sentenced in 1977. He did not file a direct appeal in either
that case or relative to the judgment of conviction and sentence
he received in 1995. Guerra does not explain his failure to
challenge his 1977 conviction when such relief may have been
available. Because no sound reason appears for his failure to
seek appropriate earlier relief, Guerra is not entitled to coram
nobis relief. The judgment of the district court is AFFIRMED.