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

                             FOR THE TENTH CIRCUIT                              October 12, 2018
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                             No. 18-5088
                                                     (D.C. Nos. 4:11-CR-00100-CVE-1)
 SAMMY JOE PERRYMAN,                                            (N.D. Okla.)
 a/k/a Sam Perryman,

       Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before BRISCOE, HOLMES, and McHUGH, Circuit Judges.
                  _________________________________

       Sammy Joe Perryman, a federal prisoner proceeding pro se, seeks to appeal the

district court’s decision construing his application for a writ of error coram nobis as a

second or successive 28 U.S.C. § 2255 motion and dismissing it for lack of jurisdiction.

To appeal from that dismissal, he must obtain a certificate of appealability (COA).

See United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). For the reasons that

follow, we deny a COA and dismiss this matter.




       *
         This order is not binding precedent except under the doctrines of law of the case,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.
       In 2011, Mr. Perryman was charged with one count of using a fire or explosive to

commit a felony, one count of arson, five counts of mail fraud, one count of bankruptcy

fraud, and three counts of money laundering. He pleaded guilty to one count of

bankruptcy fraud and one count of money laundering, but he went to trial on the

remaining counts. The government subsequently dismissed the money laundering counts,

but the jury found Mr. Perryman guilty of the remaining charges. He was sentenced to

180 months in prison, and we affirmed his convictions on direct appeal.

       In 2015, Mr. Perryman filed a § 2255 motion. The district court denied the

motion, and we denied his request for a COA to appeal from the district court’s decision.

Earlier this year, Mr. Perryman filed an application for a writ of error coram nobis,

arguing that his indictment was void due to lack of jurisdiction and that he was illegally

prosecuted, convicted and sentenced on a void indictment. The district court concluded

that Mr. Perryman’s application for coram nobis relief should be construed as a second or

successive § 2255 motion and dismissed it for lack of jurisdiction. He now seeks a COA

to appeal from the district court’s decision.

        To obtain a COA from the district court’s procedural ruling, Mr. Perryman must

show “that jurists of reason would find it debatable whether the petition states a valid

claim of the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

       A pleading should be treated as a second or successive § 2255 motion “if it in

substance or effect asserts or reasserts a federal basis for relief from the petitioner’s

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underlying conviction.” Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006). “It is

the relief sought, not [the] pleading’s title, that determines whether the pleading is a

§ 2255 motion.” United States v. Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006). A

prisoner may not file a second or successive § 2255 motion unless he first obtains an

order from the circuit court authorizing the district court to consider the motion.

28 U.S.C. § 2244(b)(3)(A); id. § 2255(h). Absent such authorization, a district court

lacks jurisdiction to address the merits of a second or successive § 2255 motion.

In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).

       In its opinion and order, the district court explained that a writ of error coram

nobis is an “extraordinary remedy” and “is available only when § 2255 motions or other

forms of relief are not available.” R., Vol. 2 at 47. The court further explained that

coram nobis relief is not “the appropriate avenue for relief when asking a federal court to

vacate or set aside a criminal conviction or sentence that the defendant is currently

serving[;] [i]nstead, defendant must seek relief under § 2255.” Id. And, the court noted

that “[t]he fact that defendant does not meet the criteria to file a second or successive

§ 2255 motion does not show that § 2255 is an inadequate remedy.” Id. at 48.

       Given these circumstances, the court determined that Mr. Perryman’s “exclusive

remedy to challenge the validity of his conviction or sentence is a § 2255 motion, and he

may not rely on the All Writs Act to avoid the requirements for filing a second or

successive § 2255 motion.” Id. The court then concluded that the application for a writ

of error coram nobis should be construed as a second or successive § 2255 motion.

Because Mr. Perryman had not received the proper authorization from this court to file a

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second or successive § 2255 motion, the district court dismissed the motion for lack of

jurisdiction.

       In the first part of his COA application, Mr. Perryman argues the merits of his

request for coram nobis relief, asserting that his indictment was void for lack of

jurisdiction. But the validity of the indictment is not part of the COA inquiry in this

matter. Instead, Mr. Perryman must show that reasonable jurists could debate the

correctness of the district court’s procedural ruling construing his application for a writ of

error coram nobis as a second or successive § 2255 motion.

       In the second part of his COA application, he argues that coram nobis is the proper

remedy because he has no other available remedy to challenge the defective indictment.

He contends that “[t]he resulting adjudication of guilt . . . is now easily determined to be

void ab initio for want of an adequate indictment.” COA App. at 17. But coram nobis is

not the proper remedy for a person, like Mr. Perryman, who is still in custody, to

challenge the validity of his indictment and the resulting conviction and sentence. See

28 U.S.C. § 2255(a) (“A prisoner in custody under sentence of a court established by Act

of Congress claiming the right to be released upon the ground that the . . . court was

without jurisdiction to impose such sentence . . . or [that the sentence] is otherwise

subject to collateral attack, may move the court which imposed the sentence to vacate, set

aside or correct the sentence.” (emphasis added)); Chaidez v. United States, 568 U.S.

342, 345 n.1 (2013) (“A petition for a writ of coram nobis provides a way to collaterally

attack a criminal conviction for a person . . . who is no longer ‘in custody’ and therefore

cannot seek habeas relief under 28 U.S.C. § 2255 or § 2241.” (emphasis added)); see also

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Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999) (explaining that “28 U.S.C.

§ 2255 is the exclusive remedy for a federal prisoner attacking the legality of his

detention” (emphasis added)). And the possibility that Mr. Perryman may not meet the

standards for authorization to file a second or successive § 2255 motion does not mean

that the § 2255 remedy is inadequate. See Caravalho, 177 F.3d at 1178 (“That

[a prisoner] may be barred from filing a second or successive motion pursuant to § 2255

in the sentencing court does not establish that the remedy provided in § 2255 is

inadequate or ineffective.”).

       Mr. Perryman has failed to show that reasonable jurists could debate the district

court’s decision to construe his application for a writ of error coram nobis as a second or

successive § 2255 motion and dismiss it for lack of jurisdiction. Accordingly, we deny a

COA and dismiss this matter.


                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk




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