357 F.3d 532 (5th Cir. 2004), 03-20354, United States v. Esogbue

Docket Nº:03-20354.
Citation:357 F.3d 532
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ambrose Onye ESOGBUE, Defendant-Appellant.
Case Date:January 16, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 532

357 F.3d 532 (5th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,


Ambrose Onye ESOGBUE, Defendant-Appellant.

No. 03-20354.

United States Court of Appeals, Fifth Circuit

January 16, 2004

Page 533

James Lee Turner, Asst. U.S. Atty., Jeffery Alan Babcock, Houston, TX, for Plaintiff-Appellee.

Ambrose Onye Esogbue, New Orleans, LA, pro se.

Appeal from the United States District Court for the Southern District of Texas.

Before JOLLY, HIGGINBOTHAM and DeMOSS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Ambrose Onye Esogbue, pro se, appeals the district court's dismissal, for lack of jurisdiction, of his petition for a writ of error coram nobis. We VACATE the judgment of dismissal and REMAND for further proceedings.


Esogbue, a native and citizen of Nigeria, was convicted of conspiracy to defraud the United States and wire fraud in 1994. He was sentenced to 37 months' imprisonment and three years' supervised release. This Court affirmed the judgment and sentence on direct appeal in an unpublished opinion filed on February 13, 1996. In September 1996, while he was incarcerated, Esogbue filed a motion under 28 U.S.C. § 2255, which was denied on June 26, 1997. The district court, as well as this Court, denied Esogbue's request for a certificate of appealability.

Esogbue was released to Immigration and Naturalization Service ("INS") custody on December 1, 1996. In January 1997, Esogbue was ordered deported. He appealed, and two years later his deportation case was remanded. He was detained by the INS during the pendency of his appeal. On remand, Esogbue was again ordered deported and again he appealed. His appeal was dismissed. Esogbue filed motions for a stay of deportation and for reconsideration, which were granted, and his appeal was reinstated. In November 2000, Esogbue was released from INS custody on bail.

In June 2001, after the completion of his term of supervised release, Esogbue filed a petition for a writ of error coram nobis in the same court in which he was convicted. In his coram nobis petition, Esogbue sought to set aside his 1994 conviction on the bases of ineffective assistance of counsel and violation of the Vienna Convention, so as to avoid deportation. The Government responded, arguing that his petition should be denied because entitlement to relief under the All Writs Act, 28 U.S.C. § 1651, is available only to individuals who have no remedy at law. The Government argued that Esogbue had a remedy at law--a successive motion under 28 U.S.C. § 2255--and that the district court lacked jurisdiction to grant him leave to file a successive § 2255 motion. The district court, without explanation, dismissed Esogbue's petition for lack of jurisdiction. Esogbue filed a timely notice of appeal.


Esogbue argues that the district court erred when it determined that it lacked jurisdiction to entertain his petition. He argues that his petition was properly filed in the district court, as it is the court that originally entered judgment against him. Further, he argues that the district court had jurisdiction to hear his petition because he is no longer in custody. The Government argues that the district court properly dismissed Esogbue's petition for a writ of error coram nobis, because Esogbue deliberately bypassed an available legal remedy--an application to file a successive motion for relief under 28 U.S.C. § 2255. The Government argues further that Esogbue presented no valid reasons for not attempting to pursue a successive motion for § 2255 relief, and that Esogbue

Page 534

did not advance any errors of a fundamental character.

"The writ of coram nobis is an extraordinary remedy available to a petitioner no longer in custody who seeks to vacate a criminal conviction in circumstances where the petitioner can demonstrate civil disabilities as a consequence of the conviction, and that the challenged error is of sufficient magnitude to justify the extraordinary relief." Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir. 1996); see also United States v. Peter, 310 F.3d 709, 712 (11th Cir. 2002) ("A writ of error coram nobis is a remedy available to vacate a conviction when the petitioner has served his sentence and is no longer in custody, as is required for post-conviction relief under 28 U.S.C. § 2255.").

Although the district court did not...

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