     Case: 18-50923      Document: 00515045511         Page: 1    Date Filed: 07/23/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                    No. 18-50923                           FILED
                                  Summary Calendar                     July 23, 2019
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GARRY DAVID GALLARDO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:87-CR-98-1


Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Garry David Gallardo, federal prisoner # 41571-080, filed a petition for
a writ of error coram nobis challenging his 1987 convictions of four counts of
mailing child pornography and 2006 revocation of probation in that case. The
district court construed the petition as a motion under 28 U.S.C. § 2255 and
dismissed it as successive and unauthorized and as barred by limitations. The
district court also denied Gallardo’s Federal Rule of Civil Procedure 59(e)


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50923     Document: 00515045511      Page: 2   Date Filed: 07/23/2019


                                  No. 18-50923

motion. Gallardo has applied for leave to proceed in forma paupers (IFP) in
this appeal from the district court’s orders.
      When, as in this case, a district court denies IFP status and certifies that
an appeal is not taken in good faith, the appellant may either pay the filing fee
or challenge the district court’s certification decision.          See 28 U.S.C.
§ 1915(a)(3); Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Gallardo’s
motion to proceed IFP on appeal is construed as a challenge to the district
court’s certification decision. See Baugh, 117 F.3d at 202.
      “The writ of coram nobis is an extraordinary remedy” that may be used
by “a petitioner no longer in custody who seeks to vacate a criminal conviction
in circumstances where the petitioner can demonstrate civil disabilities as a
consequence of the conviction, and that the challenged error is of sufficient
magnitude to justify the extraordinary relief.”       United States v. Esogbue,
357 F.3d 532, 534 (5th Cir. 2004) (internal quotation marks and citation
omitted). Where a petitioner is still in custody at the time he files the petition,
the writ of error coram nobis is not available. United States v. Hatten, 167 F.3d
884, 887 n.6 (5th Cir. 1999); United States v. Dyer, 136 F.3d 417, 422 (5th Cir.
1998).
      Gallardo does not dispute that he is still in custody with respect to the
1987 convictions and 2006 revocation judgment. Instead, he argues that this
court’s decisions limiting the writ to convicts who are no longer in custody are
erroneous. He cites United States v. Robinson, 361 U.S. 220, 230 n.14 (1960),
and United States v. Morgan, 346 U.S. 502, 511 (1954), but those cases do not
support his argument.
      Gallardo has not shown that the district court erred in determining that
his appeal was not taken in good faith. See Baugh, 117 F.3d at 202. To the
extent that Gallardo wishes to appeal the denial of his petition for a writ of



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                                   No. 18-50923

error coram nobis, the motion for leave to proceed IFP is DENIED. The appeal
is DISMISSED AS FRIVOLOUS. See 5TH CIR. R. 42.2; Baugh, 117 F.3d at 202
n.24.
        Ordinarily, a certificate of appealability (COA) is not required to appeal
the denial of a petition for a writ of error coram nobis. In this case, however,
the district court construed the petition for a writ of error coram nobis as a
successive and unauthorized § 2255 motion, and a COA is required for
appellate review of a final order in a § 2255 proceeding.               28 U.S.C.
§ 2253(c)(1)(B).
        Gallardo cannot show that the district court’s dismissal of his § 2255
motion as successive and unauthorized was debatable or incorrect. See Slack
v. McDaniel, 529 U.S. 473, 484 (2000). To the extent that Gallardo wishes to
appeal the district court’s construction of his petition for a writ of error coram
nobis as a § 2255 proceeding, his brief is construed as requesting a COA and
the request is DENIED.




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