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

                             FOR THE TENTH CIRCUIT                         October 6, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                           No. 16-8072
v.                                               (D.C. No. 1:13-CR-00170-ABJ-1)
                                                          (D. Wyoming)
JOHN SCOTT PINKERTON,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before GORSUCH, BALDOCK, and McHUGH, Circuit Judges.
                  _________________________________


      John Scott Pinkerton, a federal prisoner proceeding pro se,1 appeals the district

court’s denial of his motion for relief pursuant to a writ of coram nobis. However,

coram nobis relief is unavailable to prisoners currently in custody. See United States

v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002) (“[A] prisoner may not challenge a

      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      1
         Because Mr. Pinkerton is proceeding pro se, we construe his filings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007). “[T]his rule of liberal construction
stops, however, at the point at which we begin to serve as his advocate.” United
States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
sentence or conviction for which he is currently in custody through a writ of coram

nobis.”). Because Mr. Pinkerton is challenging the conviction for which he is

currently in custody, we AFFIRM the district court’s denial of Mr. Pinkerton’s

motion.

      We DENY Mr. Pinkerton’s motion for default judgment based on the

government’s failure to file a response brief. See Fed. R. App. P. 31(c) (failing to file

appellee brief results in exclusion from oral argument); Boulware v. Baldwin, 545 F.

App’x 725, 731 (10th Cir. 2013) (unpublished) (“Electing not to file an appellee’s

brief waives the right to participate in oral argument, Fed. R. App. P. 31(c), it does

not concede the result of the appeal.”).

                                            Entered for the Court


                                            Carolyn B. McHugh
                                            Circuit Judge




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