                                                                              FILED
                             NOT FOR PUBLICATION                              APR 26 2013

                                                                          MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


RAYMOND SUERO-PERALTA,                           No. 07-35881

                Petitioner - Appellant,          D.C. No. CV-07-0850-RSL

  v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA;
FEDERAL BUREAU OF PRISONS,

                Respondents - Appellees.


                     Appeal from the United States District Court
                       for the Western District of Washington
                      Robert S. Lasnik, District Judge, Presiding

                              Submitted April 12, 2013**
                                 Seattle, Washington

Before:         TASHIMA and CALLAHAN, Circuit Judges, and SEABRIGHT,
                District Judge.***




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
          ***
              The Honorable J. Michael Seabright, United States District Judge for
the District of Hawaii, sitting by designation.
      Raymond Suero-Peralta (“Petitioner”) seeks to challenge collaterally a 1992

conviction by guilty plea for which he received a sixty-month term of

imprisonment. Petitioner contends that he pleaded guilty with the understanding

that his federal sentence would run concurrently with a state sentence that was

anticipated but had not yet been imposed. Although the state court did

subsequently impose a sentence that was to run concurrently with the federal

sentence, Petitioner claims that at one point, the United States Bureau of Prisons

(“BOP”) improperly treated his state and federal sentences as running partially

consecutive to each other.

      In 2007, Petitioner filed a pro se motion in which he asked the district court

to vacate his 1992 conviction as void ab initio. Before the court ruled on the

motion, Petitioner asked the court to construe his motion as a petition for writ of

error coram nobis. Without mentioning Petitioner’s coram nobis request, the

district court denied the motion and dismissed it with prejudice. Two years later,

the BOP granted Petitioner’s administrative appeal relating to the calculation of his

sentencing credits. In 2010, Petitioner asked this Court to disregard from his

appeal “the issue relating to the failure of the Bureau to credit [his] aggregated

term of incarceration” but to “examine the other merits” of his case. Now

represented by appointed counsel, Petitioner contends that the district court erred


                                           2
by construing his pro se motion as a habeas petition under 28 U.S.C. § 2255, rather

than as a coram nobis petition. We have jurisdiction under 28 U.S.C. §§ 1291 and

2253, and we affirm.

      The district court’s denial of a petition for writ of error coram nobis is

subject to de novo review. Matus-Leva v. United States, 287 F.3d 758, 760 (9th

Cir. 2002). To the extent that the district court construed Petitioner’s pro se motion

as a habeas petition under 28 U.S.C. § 2255, we also review de novo the court’s

dismissal of the petition for lack of jurisdiction. See Marrero v. Ives, 682 F.3d

1190, 1192 (9th Cir. 2012); United States v. Monreal, 301 F.3d 1127, 1130 (9th

Cir. 2002).

      We do not decide whether the district court erred by failing to construe

Petitioner’s motion as a coram nobis petition because, in any event, Petitioner is

ineligible for coram nobis relief.1 Coram nobis is an extraordinary remedy

available only if Petitioner can show, inter alia, “error[] of the most fundamental

character.” Matus-Leva, 287 F.3d at 760; see Hirabayashi v. United States, 828

F.2d 591, 604 (9th Cir. 1987). Petitioner concedes that in 2009, BOP corrected the




      1
            We find the record sufficient to permit a ruling on the merits of the
coram nobis petition, and “[w]e may affirm on any ground finding support in the
record.” Matus-Leva, 287 F.3d at 760.

                                          3
sentencing miscalculation that formed the basis of his pro se motion; accordingly,

he cannot show fundamental error.

      AFFIRMED.




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