     Case: 12-50933       Document: 00512226722         Page: 1     Date Filed: 05/01/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            May 1, 2013
                                     No. 12-50933
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SAMMY NARANJO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:88-CR-24-1


Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
       Sammy Naranjo, federal prisoner # 42230-080, was convicted in 1988 of
conspiracy to possess with intent to distribute, and distribution of, cocaine. He
was sentenced to 46 months in prison and five years of supervised release. In
2000, after his five-year term of supervised release had expired, his supervised
release was revoked, and he was resentenced to 12 months in prison to run
consecutively to a 216-month federal sentence for a different, subsequent
conviction. Naranjo appeals the district court’s denial of his petition for a writ

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50933     Document: 00512226722       Page: 2   Date Filed: 05/01/2013

                                   No. 12-50933

of coram nobis. In his petition, he argued that the revocation of his supervised
release violated the Ex Post Facto Clause of the Constitution.
      The writ of coram nobis is an “extraordinary remedy” that allows a
petitioner who has completed his sentence and is no longer in custody to obtain
relief from civil disabilities arising as a consequence of his conviction. United
States v. Esogbue, 357 F.3d 532, 534 (5th Cir. 2004). Where a petitioner is still
in custody at the time he files the petition, the writ of coram nobis is not
available to the petitioner. See United States v. Hatten, 167 F.3d 884, 887 n.6
(5th Cir. 1999). The district court in this case found that Naranjo did not satisfy
the “no longer in custody” requirement for obtaining a writ of coram nobis.
      Naranjo argues that, because he has “yet to serve” his revocation sentence,
he does not satisfy the “in custody” requirement for filing a 28 U.S.C. § 2255
motion challenging the revocation. He contends that he should therefore be
allowed to challenge the revocation via a petition for a writ of coram nobis. He
also addresses the merits of his ex post facto claim.
      A petitioner who is serving two consecutive sentences is ‘in custody’ for
purposes of challenging the second sentence via a habeas petition while he is
serving the first sentence. See Peyton v. Rowe, 391 U.S. 54, 64 (1968); Maleng
v. Cook, 490 U.S. 488, 490-93 (1989); United States v. Shaid, 937 F.2d 228, 230
n.2 (5th Cir. 1991) (en banc). Thus, even if Naranjo is still serving his 216-
month federal sentence for a different, subsequent conviction and his 12-month
revocation sentence has not yet commenced, he is “in custody” for purposes of
challenging the revocation of his supervised release. As the district court did not
abuse its discretion in denying Naranjo’s petition for a writ of coram nobis, see
Santos-Sanchez v. United States, 548 F.3d 327, 330 (5th Cir. 2008), vacated on
other grounds, 130 S. Ct. 2340 (2010), the district court’s dismissal of his petition
is AFFIRMED.




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