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

                             FOR THE TENTH CIRCUIT                        September 16, 2015
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 15-3009
                                                 (D.C. No. 2:06-CR-20151-JWL-1)
JERRY L. LESTER,                                             (D. Kan.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

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

      Jerry L. Lester, proceeding pro se, appeals the district court’s denial of his

petition for a writ of error coram nobis. We affirm.

      In 2007, a jury convicted Mr. Lester of making false statements to acquire

firearms and of being an unlawful user of a controlled substance in possession of

firearms. He was sentenced to 27 months’ imprisonment, to be followed by two

years of supervised release. On direct appeal, we affirmed his conviction and

sentence. United States v. Lester, 285 F. App’x 542, 548 (10th Cir. 2008).

      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      Mr. Lester completed his sentence of incarceration. In May 2011, the district

court terminated his term of supervised release. He then began filing petitions for

coram nobis relief. We affirmed the district court’s orders denying his two previous

petitions. See United States v. Lester, 557 F. App’x 788, 792 (10th Cir. 2014);

United States v. Lester, 453 F. App’x 810, 811 (10th Cir. 2011).

      Mr. Lester filed his current, third petition on January 5, 2015. In the petition,

he asserted that a jury instruction at his trial incorrectly defined the phrase “unlawful

user” contained in 18 U.S.C. § 922(g)(3). He complained that the instruction allowed

the jury to convict him even though he was neither an addict nor a habitual user of

controlled substances. He also argued that the instruction could not be reconciled

with Kansas state-law definitions concerning possession of a firearm by an addict and

unlawful user of a controlled substance, a reconciliation which he contended was

required by 18 U.S.C. § 927.

      “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.” Chaidez v. United

States, 133 S. Ct. 1103, 1106 n.1 (2013). A petitioner is not entitled to coram nobis

relief “unless relief under 28 U.S.C. § 2255 was unavailable or would have been

inadequate.” United States v. Payne, 644 F.3d 1111, 1112 (10th Cir. 2011). Relief

under § 2255 is not unavailable or inadequate merely because the defendant failed to

avail himself of it when he had the chance. Cf. Prost v. Anderson, 636 F.3d 578, 589

(10th Cir. 2011) (holding, for § 2241 purposes, that § 2255 is inadequate or

                                            2
ineffective only if the remedy itself is infirm, not because of the movant’s “failure to

use it or to prevail under it”).

       The district court concluded that Mr. Lester could have challenged the

instruction on direct appeal or in a motion under 28 U.S.C. § 2255. It therefore

dismissed his petition.1 We review the district court’s factual findings for clear error,

its rulings on questions of law de novo, and the decision to deny a writ of coram

nobis for an abuse of discretion. Blanton v. United States, 94 F.3d 227, 230 (6th Cir.

1996); United States v. Mandanici, 205 F.3d 519, 524 (2d Cir. 2000).

       On appeal, Mr. Lester attacks our decisions affirming the dismissal of his two

previous coram nobis petitions, Aplt. Opening Br. at 2-3, and our denial of his pro se

motion for stay filed in his direct appeal, id. at 15-17. We decline to reconsider those

decisions, which became final upon the issuance of our prior appellate mandates. He

also presents new issues that he failed to raise in his coram nobis petition. See id.

at 13-15; 18-19. These issues are not before us. See Richison v. Ernest Grp., Inc.,

634 F.3d 1123, 1130-31 (10th Cir. 2011) (stating arguments raised for first time on

appeal may be reviewed only for plain error, and appellant’s failure to argue for plain



       1
         After the district court dismissed his petition, Mr. Lester filed an amended
petition. The amended petition did not assert any new claims, but specified that
Mr. Lester sought “restoration of [his] civil rights and reversal of [his] federal
convictions to a point where [he could] legally claim that [he had] no federal
conviction,” as well as “the return of all forfeited property” or a monetary settlement.
R. at 84. The district court dismissed the amended petition for the reasons stated in
its prior order of dismissal. Mr. Lester then filed his notice of appeal, purporting to
appeal only the district court’s first order of dismissal.

                                            3
error “marks the end of the road” for such arguments).2 As for his remaining

arguments concerning the district court’s decision, we find them meritless. We

therefore affirm the order dismissing Mr. Lester’s third coram nobis petition for

substantially the reasons stated by the district court.

       The district court’s order of dismissal is affirmed.


                                             Entered for the Court


                                             Carolyn B. McHugh
                                             Circuit Judge




       2
        In an amendment attached to his opening brief, Mr. Lester argues in
conclusory fashion that the district court’s jury instruction defining “unlawful user”
was plainly erroneous. Aplt. (Amended) Opening Br. at 31. But this argument
addresses only the challenged instruction, not his other, forfeited arguments.
                                            4
