            Case: 16-12886   Date Filed: 05/25/2017   Page: 1 of 6


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-12886
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 5:10-cr-00020-MSS-PRL-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                   versus


ANTHONY E. MARCHESSEAULT,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (May 25, 2017)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:
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      Anthony Marchesseault, proceeding pro se, appeals the district court’s order

striking his “Final Report Administrative/Quality Recall Plea Agreement,” which

the district court construed as a motion for reconsideration of his prior motion to

recall his plea agreement. Marchesseault pleaded guilty pursuant to a written plea

agreement to a single count of false information and hoaxes, in violation of 18

U.S.C. § 1038(a)(1)(A). Among other things, he was sentenced to 12 months’

probation. Three years after his guilty plea, and after his probation ended, he filed

a motion for reconsideration of the judgment against him. The district court denied

his motion. Marchesseault appealed. We construed his motion for reconsideration

as a petition for writ of error coram nobis and concluded that he was not entitled to

such relief because he failed to present reasons he could not previously raise his

arguments in pretrial motions, on direct appeal, or in a timely filed 28 U.S.C.

§ 2255 motion. After a series of additional motions attempting to “recall” his plea

agreement, Marchesseault filed the motion at issue, which the district court struck

from the record.

      We review a district court’s denial of a writ of error coram nobis for abuse

of discretion. United States v. Peter, 310 F.3d 709, 711 (11th Cir. 2002). A

district court’s decision to strike a pleading is reviewed for abuse of discretion.

State Exchange Bank v. Hartline, 693 F.2d 1350, 1352 (11th Cir. 1982). Although

we construe the briefs of pro se litigants liberally, we deem abandoned issues not


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briefed on appeal. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). A

federal court may re-characterize a pro se litigant’s motion to better correlate the

substance of the motion and the underlying legal claim. Castro v. United States,

540 U.S. 375, 381-82 (2003).

      A judgment of conviction that imposes a sentence of probation can be

modified or revoked until its termination, corrected by the district court within 14

days after sentencing, or appealed; otherwise, it is a final judgment. 18 U.S.C.

§ 3562(b); see id. §§ 3564, 3365, 3742; see Fed. R. Crim. P. 35(a). Failure to

appeal a conviction resulting from a guilty plea waives an appeal based on several

types of errors in the proceedings culminating in the guilty plea. Peter, 310 F.3d at

712. These include that the plea was not knowing and voluntary, or that the district

court violated Federal Rule of Criminal Procedure 11 at the plea colloquy. Id.

Generally, a guilty plea waives all non-jurisdictional challenges to a conviction.

United States v. Smith, 532 F.3d 1125, 1127 (11th Cir. 2008).

      Typically, collateral attacks on the validity of a federal conviction or

sentence must be brought under 28 U.S.C. § 2255. Turner v. Warden Coleman

FCI, 709 F.3d 1328, 1334 (11th Cir. 2013). Pursuant to § 2255, “[a] prisoner in

custody under sentence of a court established by Act of Congress . . . may move

the court which imposed the sentence to vacate, set aside or correct the sentence.”




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28 U.S.C. § 2255. Habeas corpus relief only extends to petitioners in custody or

serving a sentence at the time of filing the petition. 28 U.S.C. § 2241(c)(3).

      A writ of error coram nobis is a remedy available to vacate a conviction

after the petitioner served his sentence. Peter, 310 F.3d at 712. A writ of error

coram nobis is an extraordinary remedy available only in circumstances where

necessary to achieve justice. United States v. Mills, 221 F.3d 1201, 1203 (11th Cir.

2000). The writ of error coram nobis is available to correct fundamental errors that

“rendered the proceeding itself irregular and invalid.” Peter, 310 F.3d at 712.

Such relief is only proper when no other remedy is available, and “the petitioner

presents sound reasons for failing to seek relief earlier.” Mills, 221 F.3d at

1203-04. Juror misconduct, prejudicial misconduct during trial, and newly

discovered evidence are not fundamental errors warranting coram nobis relief. Id.

We also concluded that errors the petitioner could have raised earlier—but failed

to—do not warrant coram nobis relief. See Alikhani v. United States, 200 F.3d

732, 734 (11th Cir. 2000) (concluding that defendant could have raised his claims

in a pretrial motion and were therefore not cognizable on coram nobis review).

However, jurisdictional errors are fundamental errors warranting coram nobis

relief because they render the proceedings irregular and invalid. Peter, 310 F.3d at

712–14.




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      The law-of-the-case doctrine bars relitigation of issues that a court decided

explicitly or by necessary implication in a prior appeal. See State Farm Mut. Auto.

Ins. Co. v. Williams, 824 F.3d 1311, 1314 (11th Cir. 2014). There are three

“discrete exceptions” to the law-of-the-case doctrine. We may revisit previously

decided issues when: “(1) new and substantially different evidence emerges at a

subsequent trial; (2) controlling authority has been rendered that is contrary to the

previous decision; or (3) the earlier ruling was clearly erroneous and would work a

manifest injustice if implemented.” Id. (quotation omitted).

      An appeal from an order granting or denying a petition for a writ of error

coram nobis is a civil appeal for purposes of Fed. R. App. P. 4(a).

Fed. R. App. P. (4)(a)(1)(C).

      Marchesseault failed to identify the procedural vehicle by which he seeks to

vacate his plea agreement. His motion is best construed as a petition for a writ of

error coram nobis because he already completed his sentence. Thus, no other

forms of relief are available to him. Consequently, the civil appeal rules govern

and his appeal is timely.

      However, his attempt to obtain coram nobis relief is barred by the law-of-

the-case doctrine. None of the three exceptions apply because there was not a

subsequent trial, there is no contrary controlling authority, and the earlier ruling

was not clearly erroneous. State Farm Mut. Auto. Ins. Co., 824 F.3d at 1314.


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Nonetheless, no fundamental error exists entitling him to writ of error coram nobis.

Mills, 221 F.3d at 1203–04.

      AFFIRMED.




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