                                                                                   FILED
                                                                       United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                           Tenth Circuit

                             FOR THE TENTH CIRCUIT                         September 19, 2017
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                             No. 17-6037
                                                     (D.C. No. 5:06-CR-00096-HE-1)
ALEXANDER CHRISTIAN MILES,                                    (W.D. Okla.)
M.D.,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, BALDOCK and HOLMES, Circuit Judges.
                 _________________________________

      Defendant Alexander Christian Miles appeals the district court’s dismissal of

his petition for writ of error coram nobis for lack of jurisdiction. The district court

based its decision on its recharacterization of Mr. Miles’ petition as a second and

successive § 2255 petition that, pursuant to 28 U.S.C. § 2244(b)(3)(A), required prior

authorization from this court in order to proceed.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      To appeal an order dismissing a second or successive § 2255 petition, the

appellant must obtain a Certificate of Appealability (“COA”) from this court.

See 28 U.S.C. § 2253(c); United States v. Harper, 545 F.3d 1230, 1233 (10th Cir.

2008). A § 2255 petition, however, can only be filed by a federal “prisoner in

custody.” 28 U.S.C. § 2255(a); see Rawlins v. Kansas, 714 F.3d 1189, 1195

(10th Cir. 2013). In both his opening brief and a subsequently filed Notice to the

Court Regarding Petitioner’s Custody Status, Mr. Miles asserts that he was released

from federal custody in February 2013 and that the district court therefore erred in

recharacterizing his petition for writ of error coram nobis as a second and successive

§ 2255 petition. He further argues that a COA is not required to appeal the dismissal

of a petition for writ of error coram nobis.

      On August 14, 2017, we ordered the United States to file a memorandum brief

addressing whether the district court erred in recharacterizing Mr. Miles’ petition as a

second or successive § 2255 petition and whether a COA was required for this appeal

to proceed. In the brief filed in response to this order, the United States confirmed

that Mr. Miles was released from federal custody in February 2013 with no further

term of supervised release. United States’ Mem. Br. at 5. The United States further

conceded that the district court erroneously characterized Mr. Miles’ pleading as a

second or successive § 2255 motion and that a COA was not required for the court to

consider his appeal. Id. The United States’ concessions are in accord with our

decision in United States v. Carpenter, 598 F. App’x 576, 580-81 (10th Cir. 2015)

(unpublished) (holding district court’s recharacterization of motion for coram nobis

                                               2
to a § 2255 motion was improper when the plaintiff was no longer in federal custody

and that a COA was not necessary to appeal as a result).1

         Accordingly, we conclude that we have jurisdiction over Mr. Miles’ appeal

from the district court’s dismissal of his petition for writ of error coram nobis,

without the necessity of a COA. Further, we reverse the district court’s dismissal of

Mr. Miles’ petition, because the dismissal was grounded in the court’s erroneous

recharacterization of the petition, and remand this matter to allow the district court to

rule on Mr. Miles’ petition under the proper standards. In so ruling, we express no

opinion on the merits of Mr. Miles’ petition or the merit arguments Mr. Miles

asserted in his opening brief and the United States advanced in its memorandum

brief.

         For the foregoing reasons, the judgment of the district court is reversed and

this matter is remanded for further proceedings consistent with this order.


                                              Entered for the Court


                                              Jerome A. Holmes
                                              Circuit Judge




         1
         This unpublished decision is not binding precedent in this case, but we find
it has persuasive value with respect to the issues before us. See 10th Cir. R. 32.1(A).
                                                3
