UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 95-30634
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY JOE WALKER,
Defendant-Appellant.
__________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(95-CV-0318,75-CR-192)
__________________________________________
October 11, 1996
Before GARWOOD, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
Pursuant to 28 U.S.C. § 2255, Terry Joe Walker, a state
prisoner, challenges, pro se, his expired federal conviction. The
district court held that Walker was no longer “in custody” for §
2255 purposes, and therefore construed the application under the
stricter coram nobis standard. Assuming, without deciding, that
Walker satisfies the § 2255 in custody requirement, his claims are
without merit. We AFFIRM.
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
I.
Terry Joe Walker pled guilty in 1975 to armed robbery of a
bank, in violation of 18 U.S.C. §§ 2113(a) and (d). He was
sentenced to 12 years imprisonment. While serving that sentence,
he moved twice for its reduction or modification, and twice for its
vacation. The motions were denied.
Walker is currently confined in state prison under a
conviction on a different charge. He claims that his federal
conviction enhanced this state sentence, and that, therefore, he is
still “in custody” for § 2255 purposes. Accordingly, he moved for
§ 2255 relief, raising primarily the same claims as in his previous
motions. The district court, holding that Walker was no longer in
such custody, treated his motion as one for coram nobis, and denied
it.
II.
Here, Walker assumes arguendo that the not-in-custody ruling
was correct. Therefore, the parties address his claims under the
more stringent coram nobis standards. As discussed below,
regarding the standard of review, we will apply that for § 2255 for
analyzing Walker’s claims, the differing views of the parties and
the district court notwithstanding. See United States v. Ho, 1996
WL 490329, *11 (Aug. 27, 1996)(Barksdale, J., dissenting); United
States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir.) (en banc),
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cert. denied, 505 U.S. 1223 (1992). Walker has not forfeited his
§ 2255 claims for the following reasons.
Although they eventually fall short, Walker presents § 2255
claims. Although his brief assumes arguendo that he is not in such
custody, it can be read to argue in favor of treating his claims as
arising under § 2255. Walker originally moved under § 2255; but,
the district court treated the motion as one in coram nobis.
Because we are necessarily reviewing this holding, and assume,
without deciding, that Walker was “in custody” for § 2255 purposes,
that claim is preserved.
A.
For purposes of 28 U.S.C. §§ 2254 and 2255, “a person is ‘in
custody’ pursuant to a conviction for which the sentence has
expired if he presently is serving a subsequent sentence that was
enhanced by the challenged conviction.” United States v. Woods,
870 F.2d 285, 286 n.1 (5th Cir. 1989). This doctrine was called
into doubt by Maleng v. Cook, 490 U.S. 488 (1989), which held that
habeas petitioners were no longer in custody once they had served
their full sentence, and therefore were no longer eligible for
habeas relief. Id. at 492. However, Allen v. Collins, 924 F.2d
88, 89 (5th Cir. 1991), reaffirmed that a sufficient nexus between
the petitioner’s current sentence and the prior conviction which he
challenges will satisfy the jurisdictional requirement of § 2254.
See also Willis v. Collins, 989 F.2d 187 (5th Cir. 1993)(petitioner
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“in custody” for purposes of § 2254 when there exists a “sufficient
nexus” between the challenged conviction and the current sentence,
such as an enhancement of the current sentence based on the
challenged conviction).
Walker asserts, and the Government does not dispute, that his
state sentence was enhanced as a result of the challenged federal
conviction. Although our post-Maleng decisions in Allen and Willis
concern § 2254, it is not necessary for purposes of our review to
decide whether they compel finding § 2255 jurisdiction in this
case. If § 2255 is not the appropriate vehicle, then coram nobis
is. Accordingly, we start our analysis by assuming, arguendo, that
§ § 2255 applies.
B.
This court will not disturb an order unless the error affects
the substantial rights of the parties. FED.R.CIV.P. 61. As
hereinafter discussed, the outcome of the claims would have been
the same under § 2255 analysis; therefore, the rights of the
parties were not affected, and the application of coram nobis
standards was harmless error. (Because of this substantial rights
analysis, we bypass the cause and prejudice analysis that arises
customarily for successive § 2255 motions.)
1.
Walker’s FED.R.CRIM.P. 11 claim is without merit. He was
addressed personally during the guilty plea colloquy, and answered
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affirmatively to the court’s questions regarding his wish to plead
guilty, his understanding of the charges against him, and his
understanding of the penalties he faced. Walker points to no
contradictory evidence. Accordingly, his claim does not meet the
constitutional threshold for § 2255.
2.
Likewise, the ineffective assistance of counsel claim is
without merit. To prevail on such a claim, Walker must show
deficient representation that was prejudicial. Strickland v.
Washington, 466 U.S. 668, 687 (1984). His claim that such
ineffective assistance led to an involuntary guilty plea rests on
four grounds. He asserts that his attorney coerced him into
pleading guilty by: (1) misleading him with respect to the
admission of certain evidence at trial; (2) threatening that, if he
were to go to trial, his wife would also be charged on similar
counts; (3) deceiving him with respect to the particular charge to
which he would be pleading guilty; and (4) threatening that appeal
from a jury trial would be impossible. Walker does not claim that
he was unaware that an appeal had not been filed or was otherwise
deceived about the lack of an appeal.
Without having to examine the adequacy of representation, this
claim fails because Walker does not present evidence showing
prejudice, except his conclusory allegations that, but for his
attorney’s advice, he would have insisted on a trial. Without
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more, we will not displace Walker’s sworn declaration at the guilty
plea, which expressed both the voluntariness of his plea, and his
satisfaction with his representation. Blackledge v. Stumpf, 431
U.S. 63, 74 (1977); United States v. Wilkes, 20 F.3d 651, 652 (5th
Cir. 1994).
III.
For the foregoing reasons, the denial of relief is AFFIRMED.
Walker is cautioned that any additional frivolous petitions filed
by him will invite the imposition of sanctions.
JUDGEMENT AFFIRMED; SANCTIONS WARNING ISSUED
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