                                                                          FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 7, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 11-7059
          v.                                            (E.D. of Okla.)
 WALTER ELIYAH THODY,                           (D.C. No. CR-91-00051-FHS )

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **


      Walter Eliyah Thody, a federal prisoner proceeding pro se, filed a petition

for a writ of coram nobis in the district court, seeking to overturn his 1991

conviction for using or carrying a firearm during a violent crime under 18 U.S.C.

§ 924(c)(1). The district court denied Thody’s petition on both procedural and




      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
substantive grounds. We have jurisdiction pursuant to 28 U.S.C. § 1291 and

AFFIRM.

                               I. Background

      In July and August of 1991, Thody and an accomplice twice robbed the

Cimarron Federal Savings Association in Muskogee, Oklahoma. During the July

robbery, Thody brandished a gun and threatened the teller. During the August

robbery, Thody did not display a gun, but pulled a gun from his waistband shortly

after the robbery when police confronted him. Thody was convicted of two

counts of bank robbery pursuant to 18 U.S.C. §§ 2 and 2113(a), one count of

being a felon in possession of a firearm pursuant to § 922(g), two counts of using

or carrying a firearm during a violent crime pursuant to § 924(c)(1), and one

count of conspiracy pursuant to § 371. He was sentenced to 35 years and 5

months in prison.

      Thody directly appealed his conviction, arguing among other things that

there was insufficient evidence to support his second § 924(c)(1) conviction, but

was unsuccessful. United States v. Thody, 978 F.2d 625 (10th Cir. 1992), cert.

denied, 513 U.S. 907 (1994). Thody’s co-defendant, Richard Scott McIntosh,

also appealed his conviction and sentence but did not prevail. United States v.

McIntosh, 999 F.2d 487 (10th Cir. 1993). McIntosh then filed a 28 U.S.C. § 2255

petition, which also failed. United States v. McIntosh, 172 F.3d 63 (10th Cir.

1999) (unpublished).

                                        -2-
      Thody never filed a § 2255 petition. Even after the United States Supreme

Court held in 1995 that many § 924(c)(1) jury instructions improperly defined

“use,” Thody still did not file a § 2255 petition. See Bailey v. United States, 516

U.S. 137 (1995), superseded by statute, Pub. L. No. 105-386, 112 Stat. 3469

(1998). 1 He did not collaterally attack his conviction until May 19, 2011, when

he filed a petition for a writ of coram nobis challenging his second § 924(c)(1)

conviction. 2 The district court denied Thody’s petition and this appeal followed.



                                  II. Discussion

      Although Thody’s original petition sought a writ of coram nobis, he now

concedes this writ is inappropriate for the relief he seeks. He instead claims the

district court should have construed his petition as a § 2255 motion. He also

claims the district court should have construed the motion as having been filed

shortly after Bailey was made retroactively applicable on collateral review to pre-

Bailey § 924(c)(1) convictions. Bousley v. United States, 523 U.S. 614 (1998).

On the merits, Thody claims his second § 924(c)(1) conviction should be reversed



      1
         The 1998 amendment to § 924(c)(1) added the term “possess” in response
to the Supreme Court’s observation in Bailey that “had Congress intended
possession alone to trigger liability under § 924(c)(1), it easily could have so
provided” by using the word “possess.” 516 U.S. at 143. See United States v.
O’Brien, 130 S. Ct. 2169, 2179 (2010).
      2
          Thody does not attack his other convictions in this appeal.

                                         -3-
because there was no evidence he used a firearm during the second robbery. As

we discuss, none of these arguments is persuasive.

      A. Writ of Coram Nobis or Audita Querela

      When reviewing a denial of a coram nobis petition, we review questions of

law de novo, but review the district court’s decision to deny the writ for an abuse

of discretion. United States v. Mandanici, 205 F.3d 519, 524 (2d Cir. 2000).

      The district court correctly concluded that neither a writ of coram nobis nor

a writ of audita querela is available here. 3 Common law writs such as these are

extraordinary remedies that are appropriate only in compelling circumstances.

United States v. Denedo, 556 U.S. 904, 129 S. Ct. 2213, 2224 (2009).

      Petitions relying on these writs must meet a number of requirements before

they can use them. For example, petitioners must demonstrate due diligence in

bringing their claims, that other remedies are unavailable or inadequate, and that

the underlying trial error was fundamental, meaning the error resulted in a


      3
         Writs of coram nobis and audita querela were used at common law to
attack infirm judgments. United States v. Torres, 282 F.3d 1241, 1245 n. 6 (10th
Cir. 2002). A writ of coram nobis was used to attack judgments that were infirm
when issued, for reasons discovered later. Id. (internal quotation omitted). A
writ of audita querela, by contrast, was used to attack judgments that were correct
when issued but rendered infirm by later matters. Id. (internal quotation omitted).
Rule 60(b) of the Federal Rules of Civil Procedure abolished both writs, but the
Supreme Court later held that the writ of coram nobis was still available in the
criminal context. United States v. Morgan, 346 U.S. 502 (1954). It is an open
question whether the writ of audita querela is similarly available, but this court
has previously assumed it is available without deciding that it is. Torres, 282
F.3d at 1245 n. 6.

                                        -4-
complete miscarriage of justice. United States v. Morgan, 346 U.S. 502, 511–12

(1954); Embrey v. United States, 240 F. App’x. 791, 793–94 (10th Cir. 2007).

Further, “a prisoner may not challenge a sentence or conviction for which he is

currently in custody through a writ of coram nobis.” United States v. Torres, 282

F.3d 1241, 1245 (10th Cir. 2002).

      Thody does not meet any of these requirements. He is currently in custody

for the conviction he is challenging. He cannot demonstrate diligence in pursuing

his claim when he waited 15 years after the Supreme Court’s decision in Bailey to

file his petition. He claims he was blocked by a fraudulent detainer, but for

reasons discussed below, he fails to establish that the detainer actually prevented

him from pursuing his claim. Thody also cannot demonstrate that other relief is

unavailable. Because he seeks to collaterally attack his conviction, a § 2255

motion is the proper vehicle for relief. Johnson v. Taylor, 347 F.2d 365, 366

(10th Cir. 1965) (per curiam). The fact that a § 2255 motion is now untimely

does not mean the unavailability requirement has been met. United States v.

Payne, 644 F.3d 1111, 1113 (10th Cir. 2011).

      Thody also does not claim he is factually innocent of carrying a gun in

violation of § 924(c)(1). He merely claims that he did not use a firearm during

the second robbery. See United States v. Bustillos, 31 F.3d 931, 934 (10th Cir.

1994) (holding that coram nobis petitioner must assert actual innocence). Thody

ignores the “carry” prong of § 924(c)(1), under which there was sufficient

                                         -5-
evidence to convict him. 4 In sum, the district court did not abuse its discretion

when it denied Thody both a writ of coram nobis and a writ of audita querela.

      B. 28 U.S.C. § 2255 Motion

      Thody also asserts that because he is pro se, the district court should have

construed his petition as a § 2255 motion. Although Thody requested in his reply

brief below that the district court construe his motion into “whatever form of

remedy might be appropriate to accomplish justice,” R., Vol. I at 186, in his

opening brief below, Thody specifically argued that a § 2255 motion was

unavailable to him. The district court did not address whether Thody’s petition

should be construed as a § 2255 motion, other than noting that Thody was time-

barred under § 2255(f)(3) from bringing such a motion.

      Courts have a duty to construe pro se motions liberally. Ledbetter v. City

of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003). Despite this duty, “it is

[not] the proper function of the district court to assume the role of advocate for

the pro se litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

“When a defendant pursues a particular theory . . ., but fails to raise another

closely related argument, he has forfeited the argument.” United States v. Lewis,

594 F.3d 1270, 1288 (10th Cir.), cert. denied, 130 S. Ct. 3441 (2010) (internal

      4
         Thody admitted as much in his reply brief to the trial court, where he
stated “while evidence was sufficient to infer that defendant had carried a firearm
(second prong) during the August 29, 1991 bank event, there was NO evidence of
any first prong use thereof....” R., Vol. I at 188. The carry prong of § 924(c)(1)
is discussed in more detail below.

                                         -6-
quotation omitted). In such cases, we review only for plain error and will reverse

only if “(1) there is . . . error, (2) [the error] is plain, (3) [the error] affects

substantial rights, and (4) [the error] seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. (internal quotation omitted).

Thody’s pleadings below sought a writ of coram nobis and acknowledged that he

could not file a § 2255 motion. Given this, we cannot conclude the district court

should have construed Thody’s pleadings as a § 2255 motion, however liberally it

read them. Thus we review Thody’s § 2255 claim for plain error only.

       The district court did not plainly err by failing to construe Thody’s petition

as a § 2255 motion. First, regardless of how the district court characterized

Thody’s pleadings, it considered and rejected his substantive claims. It did not

deny Thody’s petition solely on procedural grounds. Instead, the district court

examined the merits of Thody’s claims and determined that, whatever form of

relief his pleadings sought, Thody was not entitled to that relief.

       In addition, the district court correctly concluded that any § 2255 motion

Thody might file would be untimely. A one-year limitations period applies to

§ 2255 motions under § 2255(f). For purposes of Thody’s appeal, this period

began to run on “the date on which the right asserted was initially recognized by

the Supreme Court, if that right has been newly recognized by the Supreme Court

and made retroactively applicable to cases on collateral review. . . .” 28 U.S.C.




                                              -7-
§ 2255(f)(3). This court held on August 20, 1996, that the Supreme Court’s

holding in Bailey was retroactively applicable. United States v. Barnhardt, 93

F.3d 706, 709 (10th Cir. 1996). The Supreme Court reached the same conclusion

on May 18, 1998. Bousley, 523 U.S. at 621. Even taking the later of these two

dates as the beginning of the limitations period, Thody had to file any § 2255

motion by May 18, 1999. Thody is thus barred from filing a § 2255 motion. The

district court did not err—let alone plainly err—by failing to construe Thody’s

pleadings as an untimely § 2255 motion. Cf. United States v. Martin, 357 F.3d

1198, 1199 (10th Cir. 2004) (holding harmless district court’s failure to notify

appellant it construed his pleadings as a § 2255 motion because the motion was

untimely).

      To avoid this obvious conclusion, Thody claims the district court should

have construed his § 2255 motion as though he filed it before the limitations

period expired. Thody did not raise this argument before the district court, so we

review it for plain error. Lewis, 594 F.3d at 1288.

      Thody does not cite any authority in support of this extraordinary remedy.

His only argument is that the district court should have done so because the

Muskogee County Sheriff filed a fraudulent detainer against him in 1992 that was

not withdrawn until 2011. He claims he did not file a § 2255 motion because the




                                         -8-
detainer made doing so futile; even if he had succeeded, he would merely have

been transferred into state custody to serve a state sentence. 5

      Construing his pleadings liberally, we interpret Thody to claim that the

district court should have calculated his limitations period as beginning when the

supposedly fraudulent detainer was removed per § 2255(f)(2), 6 or in the

alternative, that the district court erred by failing to toll the start of the limitations

period. See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (holding that

equitable tolling is applicable to AEDPA’s one-year limitations period).

      The district court did not plainly err under either theory. As to the first,

Thody has not shown this detainer prevented him from filing a § 2255 motion.

Even if we accept his allegation about the detainer, it does not excuse his failure to

act. By Thody’s own admission, the detainer did not prevent him from filing a §

2255 motion. He instead claims that he chose not to file a § 2255 motion because



      5
         Thody discussed this allegedly fraudulent detainer only in his reply brief
to the district court. He did so to prove he met the diligence requirement for a
writ of coram nobis. Thody did not argue to the district court that this detainer
was grounds for the court to construe his motion as a timely § 2255 motion.
      6
         This section provides:
      (f) A 1-year period of limitation shall apply to a motion under this
      section. The limitation period shall run from the latest of —
             ***
             (2) the date on which the impediment to making a
             motion created by governmental action in violation of
             the Constitution or laws of the United States is removed,
             if the movant was prevented from making a motion by
             such governmental action;

                                            -9-
even if he were successful, he would merely have been transferred from federal to

state custody. This does not demonstrate that Thody was actually prevented from

filing a § 2255 motion, as § 2255(f)(2) requires.

      As for the second theory, Thody has not shown that he even qualifies for

equitable tolling, let alone that the district court’s failure to grant it sua sponte was

plain error. For equitable tolling to apply, a movant must demonstrate “(1) that he

has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way.” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir.

2008) (internal quotation omitted). As discussed, Thody did not diligently pursue

his rights. Again, the existence of this detainer does not establish that Thody was

actually prevented from filing a § 2255 motion.

      We decline to construe this detainer as the sort of extraordinary

circumstance necessary to equitably toll Thody’s limitations period. Accordingly,

the district court did not err, plainly or otherwise, when it concluded Thody’s

limitations period for a § 2255 motion had expired.

      C. The Merits

      The district court also considered and rejected Thody’s petition on the

merits. Thody claims this was in error because no evidence established his use of

a gun during the second robbery. Thus he argues that under Bailey, he could not

be convicted of a second§ 924(c)(1) violation. Bailey does not compel this result.




                                           -10-
      “[A]ny person who, during and in relation to any crime of violence or drug

trafficking crime ... uses or carries a firearm” violates § 924(c)(1). In Bailey, the

Supreme Court held defendants could not be convicted of violating the “use”

prong if the evidence showed only that they possessed or had access to a firearm.

516 U.S. at 143. Bailey did not hold that a defendant violates § 924(c)(1) only if

he both used and carried a firearm. Id. at 146. On the contrary, “a firearm can be

carried without being used.” Id. The “carry” prong “brings some offenders who

would not satisfy the ‘use’ prong within the reach of the statute.” Id. at 150.

      Bousley held that a defendant convicted of violating § 924(c)(1) under an

improper “use” instruction could collaterally attack his sentence only by showing

his actual innocence of the charged violation. 523 U.S. at 614. This requires

Thody to show that, “in light of all the evidence, it is more likely than not that no

reasonable juror would have convicted him.” Id. at 623. Put another way, “Bailey

claims are foreclosed if the evidence was legally sufficient to convict for carry.”

United States v. Leopard, 170 F.3d 1013, 1016 (10th Cir. 1999) (per curiam).

      Thody was charged with two counts of “knowingly us[ing] and carr[ying]

certain firearms . . . during and in relation to a crime of violence.” R., Vol. I at

19–20. His jury was instructed that “whoever, during and in relation to any crime

of violence uses or carries a firearm, shall be guilty of an offense against the law




                                          -11-
of the United States.” 7 R., Vol. II at 485. The instructions explained that “the

‘using or carrying’ of a firearm element is satisfied when a defendant has ready

access to the firearm, and the firearm is an integral part of his criminal

undertaking, and [its] availability increased the likelihood that the criminal

undertaking would succeed.” Id. at 486.

      The government concedes this “use” definition was improper. But the

district court found “carry” was properly defined and concluded the evidence was

sufficient to uphold the jury’s verdict under the “carry” prong. We agree with the

district court’s analysis. This court previously held an instruction identical to this

one proper as to “carry.” United States v. Emberson, 133 F.3d 933 (10th Cir.

1998) (unpublished). Thody does not argue this “carry” definition was flawed.

We thus conclude Thody’s jury was correctly instructed as to “carry.”

      That being so, Thody’s second § 924(c)(1) conviction was proper. This

court already determined there was sufficient evidence Thody carried a gun during

the second robbery. Thody, 978 F.2d at 630. The evidence established that Thody

displayed a firearm during the first robbery, employed an “essentially identical”


      7
         Thody complains repeatedly about the use of the conjunctive “use and
carry” in his indictment. He appears to argue that because the charge was stated
in the conjunctive, he could not be convicted absent proof he both used and
carried a firearm. But as the district court found, the jury instructions correctly
stated that the standard was the disjunctive “use or carry,” curing any defect in
his indictment. See United States v. Lott, 310 F.3d 1231, 1246 (10th Cir. 2002)
(holding that use of conjunctive in an indictment charging a § 924(c)(1) violation
is not in error where jury instructions properly state the charge in the disjunctive).

                                         -12-
modus operandi during the second robbery, pulled a pistol from his waistband

minutes after the second robbery when confronted by police, and fired several

shots during a resulting high-speed chase. Id. “[T]he jury could rationally infer

from [this] evidence that Thody had his pistol with him the entire time.” Id.

      Second, Thody is unable to demonstrate his actual innocence of a

§ 924(c)(1) violation. Thody repeatedly claims he did not use a firearm during the

second robbery, but admits “[t]he facts as determined at trial established ONLY

one prong of the Indictment’s two pronged Count 5 charge; that of carrying....”

Aplt. Br. at 4. He admitted this to the district court as well. Thody seems to

believe Bailey requires proof of both use and carry to sustain a § 924(c)(1)

conviction, but Bailey explicitly held either prong is sufficient. 516 U.S. at 151.

      Because Thody admits the evidence was sufficient to sustain his conviction

under the “carry” prong, he cannot demonstrate that he is actually innocent of

violating § 924(c)(1). The district court thus correctly denied his petition on the

merits, regardless of the form of relief sought.



                                 III. Conclusion

      For the foregoing reasons, we AFFIRM the district court’s denial of Thody’s

Petition for a Writ of Coram Nobis. Accordingly Thody’s implied request to




                                         -13-
reconstruct a § 2255 petition is DENIED. His Motion to Expedite is also

DENIED.

                                              Entered for the Court

                                              Timothy M. Tymkovich
                                              Circuit Judge




                                       -14-
