James Mozie v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11435
Non-Argument Calendar
____________________
JAMES MOZIE,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:21-cv-60823-WPD
____________________
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2 Opinion of the Court 21-11435
Before WILSON, ROSENBAUM , and BLACK , Circuit Judges.
PER CURIAM:
James Mozie, a federal prisoner, appeals the district court’s
dismissal without prejudice and, alternatively, denial of his petition
for writ of error
coram nobis under 28 U.S.C. § 1651(a). He asserts
the district court erred when it rejected his argument that the court
in the underlying action lacked subject-matter jurisdiction over his
conviction for production of child pornography. The court deter-
mined his argument was not cognizable under the All Writs Act
and his petition was, in essence, an unauthorized 28 U.S.C. § 2255
motion to vacate his sentence. The Government responds by mov-
ing for summary affirmance of the district court’s order and a stay
of the briefing schedule, contending that
coram nobis relief was not
available to Mozie because he was still in custody and his petition
was an unauthorized successive § 2255 motion. Mozie has filed a
motion in opposition of the Government’s motion for summary
affirmance. After review,1 we grant the Government’s motion for
summary affirmance.
1 We review a district court’s denial of a writ of error
coram nobis for abuse
of discretion.
United States v. Bane, 948 F.3d 1290, 1294 (11th Cir. 2020).
We review
de novo whether a 28 U.S.C. § 2255 motion is second or successive.
Armstrong v. United States, 986 F.3d 1345, 1348 (11th Cir. 2021).
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21-11435 Opinion of the Court 3
The writ of error
coram nobis is an extraordinary remedy of
last resort that is available only in compelling circumstances where
necessary to achieve justice.
United States v. Mills, 221 F.3d 1201,
1203 (11th Cir. 2000). Federal courts have the authority to issue
such a writ under the All Writs Act.
Id. A writ of error
coram nobis
is unavailable to a petitioner who is still in custody; whereas 28
U.S.C. § 2255 relief is available to a petitioner who is in custody.
United States v. Garcia, 181 F.3d 1274, 1274 (11th Cir. 1999); 28
U.S.C. § 2255(a).
It is clear as a matter of law the district court correctly con-
strued Mozie’s
coram nobis petition as a § 2255 motion and dis-
missed it without prejudice as an unauthorized second or succes-
sive § 2255 motion.
See Groendyke Transp., Inc. v. Davis, 406 F.2d
1158, 1162 (5th Cir. 1969)2 (explaining summary disposition is ap-
propriate where “the position of one of the parties is clearly right
as a matter of law so that there can be no substantial question as to
the outcome of the case, or where, as is more frequently the case,
the appeal is frivolous”). The district court was required to liberally
construe Mozie’s application for post-conviction relief and to con-
strue it as brought under the proper statutory framework for seek-
ing relief.
See United States v. Brown, 117 F.3d 471, 475 (11th Cir.
1997) (stating
pro se applications for post-conviction relief are to be
2 In
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth Cir-
cuit handed down prior to close of business on September 30, 1981.
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4 Opinion of the Court 21-11435
liberally construed and pleadings erroneously styled as
coram
nobis petitions should be treated as § 2255 motions, and vice versa).
Mozie’s challenge that the district court lacked jurisdiction
as to Count 10 of the third superseding indictment was potentially
cognizable under § 2255 and
coram nobis.
See Alikhani v. United
States, 200 F.3d 732, 734 (11th Cir. 2000) (explaining a claim the
district court lacked jurisdiction to adjudicate the petitioner guilty
is cognizable in a
coram nobis petition); 28 U.S.C. § 2255(a) (provid-
ing a claim the district court “was without jurisdiction to impose
[a] sentence” may be properly raised in a motion brought under
§ 2255). But as Mozie is still in custody, the district court properly
construed his petition as a § 2255 motion because the remedies un-
der § 2255 were available to him and
coram nobis relief was una-
vailable.
See Brown, 117 F.3d at 475. Because Mozie previously
filed a § 2255 motion that was denied with prejudice and failed to
obtain this Court’s authorization to file a second or successive
§ 2255 motion, it is clear as a matter of law that the district court
correctly dismissed his construed second or successive § 2255 mo-
tion without prejudice for lack of jurisdiction.
Armstrong v. United
States, 986 F.3d 1345, 1348 (11th Cir. 2021) (stating a federal pris-
oner who wishes to file a second or successive motion to vacate,
set aside, or correct sentence is required to obtain an order from
this Court authorizing the district court to consider such a motion
and if a movant fails to obtain our authorization, the district court
must dismiss a second or successive § 2255 motion for lack of juris-
diction).
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21-11435 Opinion of the Court 5
Moreover, contrary to Mozie’s assertion in his filing oppos-
ing summary affirmance, even if his conviction on Count 10 were
found to be invalid, he would remain in custody serving multiple
concurrent life sentences.
In re Williams, 826 F.3d 1351, 1356 (11th
Cir. 2016) (stating under the concurrent-sentence doctrine, where
a defendant has concurrent sentences on multiple counts of con-
viction and one count is found to be invalid, we “need not consider
the validity of the other counts unless the defendant would suffer
adverse collateral consequences from the unreviewed conviction”
(quotation marks omitted)). Finally, although a jurisdictional chal-
lenge is cognizable in a
coram nobis petition, the challenge that
Mozie sought to bring here was not jurisdictional, as an indict-
ment’s failure to state an offense does not divest the district court
of jurisdiction.
Alikhani, 200 F.3d at 734 (recognizing that courts
have rejected the assertion that a failure to allege an interstate-com-
merce nexus deprives the district court of jurisdiction).
Thus, in light of the above, the Government’s position is
“clearly right as a matter of law” and there is no substantial ques-
tion that the district court properly dismissed Mozie’s petition for
a writ of error
coram nobis without prejudice for lack of subject-
matter jurisdiction and, alternatively, on the merits.
See Groen-
dyke Transp., 406 F.2d at 1162. Accordingly, we GRANT the Gov-
ernment’s motion for summary affirmance and DENY as moot its
motion to stay the briefing schedule. We also DENY Mozie’s mo-
tion in opposition of summary affirmance.
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