United States v. Elwood Cluck

Case: 15-50966 Document: 00513960123 Page: 1 Date Filed: 04/19/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-50966 FILED
Summary Calendar April 19, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ELWOOD CLUCK, also known as Jack Cluck,

Defendant-Appellant

Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:95-CR-99-1

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Elwood Cluck, federal prisoner # 68640-080, appeals the district court’s
order denying his motion for leave to file his proposed pleading entitled a
“motion to vacate and dismiss the prosecutors’ February 7, 2014 letter and
vacate the judgment dated May 27, 1997 due to lack of subject matter
jurisdiction and prosecutorial misconduct.” The district court construed the
proposed pleading as seeking a writ of error coram nobis that would vacate

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
 Case: 15-50966 Document: 00513960123 Page: 2 Date Filed: 04/19/2017

No. 15-50966
Cluck’s 1997 sentence of restitution, and it determined that (1) it could not
modify a restitution order through such a writ; (2) the proposed claims were
duplicative of those raised by Cluck in earlier proceedings; (3) to the extent
Cluck sought to raise new claims, he presented no sound reason for his failure
to seek appropriate relief earlier; and (4) Cluck failed to demonstrate any
substantial, ongoing civil disability resulting from his allegedly wrongful
conviction that would warrant granting the extraordinary writ of coram nobis.
We review the district court’s “factual findings for clear error, questions
of law de novo, and the district court’s ultimate decision to deny the writ [of
coram nobis] for abuse of discretion.” Santos-Sanchez v. United States, 548
F.3d 327, 330 (5th Cir. 2008), vacated on other grounds by 559 U.S. 1046,
(2010). This court’s “review is limited by the presumption of correctness of
prior proceedings and the narrow range of claims cognizable in granting the
remedy sought by [the petitioner].” United States v. Dyer, 136 F.3d 417, 422
(5th Cir. 1998). Coram nobis relief is available only upon proof that the
petitioner is suffering civil liabilities as a result of the challenged criminal
conviction and that the error is of sufficient magnitude to justify the
extraordinary relief. See id. at 422, 430. “[A] petitioner seeking coram nobis
must exercise ‘reasonable diligence’ in seeking prompt relief.” Id. at 427
(footnoted citations omitted). Thus, he must provide sound reasons for failing
to seek appropriate relief earlier. Id. at 422.
Cluck did not make the requisite showings in the district court. We
conclude that the district court did not abuse its discretion by denying Cluck’s
motion sua sponte. See Santos-Sanchez, 548 F.3d at 330. We do not address
challenges to the Government’s enforcement efforts that were not preserved
below. See Nunez v. Allstate Ins. Co., 604 F.3d 840, 846 (5th Cir. 2010).
The district court’s order is AFFIRMED. All pending motions are
DENIED.

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