                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   August 20, 2012
                    UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 12-6087
          v.                                          (W.D. Oklahoma)
 RICHARD RICKETTS,                             (D.C. No. 5:86-CR-00103-M-2)

               Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before MURPHY, EBEL, and HARTZ, Circuit Judges.


      Petitioner Richard Ricketts appeals the denial of his pro se petition for writ

of error coram nobis, see 28 U.S.C. § 1651(a); United States v. Morgan, 346 U.S.

502 (1954), by the United States District Court for the Western District of

Oklahoma. We have jurisdiction under 28 U.S.C. § 1291 and affirm because

Petitioner has not shown that the remedy provided by 28 U.S.C. § 2255 was

unavailable or inadequate.


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
      Petitioner pleaded guilty to conspiring to manufacture, distribute, and

possess with intent to distribute amphetamine, see 21 U.S.C. § 846, and was

sentenced on August 28, 1986, to 12 years’ imprisonment. He did not appeal or

file a motion under 28 U.S.C. § 2255. On December 2, 2011, long after he had

completed serving his sentence, he filed his coram nobis petition challenging his

conviction as unconstitutional on various grounds, including the Tenth

Amendment. Without reaching the merits of Petitioner’s claims, the district court

denied the petition, holding that Petitioner could not use a coram nobis petition to

challenge his conviction because he had failed to show, or even assert, that the

remedy provided by 28 U.S.C. § 2255 was unavailable or inadequate. Petitioner

then filed a motion for reconsideration under Fed. R. Civ. P. 59(e), which the

court also denied.

      On appeal Petitioner argues that the district court improperly denied his

petition without reaching the merits of his claim. But, as the district court noted,

“[t]he exclusive remedy for testing the validity of a judgment and sentence, unless

it is inadequate or ineffective, is that provided for in 28 U.S.C. § 2255.”

Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (internal quotation marks

omitted); see United States v. Payne, 644 F.3d 1111, 1112 (10th Cir. 2011).

Petitioner argues that a § 2255 motion was not available to him because he lacked

standing to bring his Tenth Amendment claim until the Supreme Court’s recent

decision in Bond v. United States, 131 S. Ct. 2355 (2011), at which time he could

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not raise a § 2255 motion because he was no longer in custody under the

challenged conviction. We are not persuaded.

       In Bond the Supreme Court held that a defendant indicted for violating a

federal statute had standing to challenge the statute’s validity on the ground that it

intruded on the sovereignty and authority of the States in violation of the Tenth

Amendment. See id. at 2360, 2367. But the Court made clear that none of its

precedents would have barred standing. It stated that “[t]here is no basis in

precedent or principle to deny [the defendant’s] standing to raise her claims.” Id.

at 2367. Thus, no Supreme Court decision would have prevented Petitioner from

raising his claim before the Bond decision. His decision to wait for an affirmative

statement by the Supreme Court permitting his challenge does not render the

remedy under § 2255 unavailable or inadequate. See Prost v. Anderson, 636 F.3d

578, 589 (10th Cir. 2011) (in determining “whether § 2255 [i]s an inadequate or

ineffective remedial mechanism for challenging the legality of [a defendant’s]

detention[,] . . . it is the infirmity of the § 2255 remedy itself, not the failure to

use it or to prevail under it, that is determinative”).




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      We GRANT Petitioner’s motion to file his reply brief out of time and

AFFIRM the judgment of the district court.



                                     ENTERED FOR THE COURT


                                     Harris L Hartz
                                     Circuit Judge




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