United States of America v. Larry Cochran

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 25, 2024*
Decided June 27, 2024
Before
CANDACE JACKSON-AKIWUMI, Circuit Judge
JOHN Z. LEE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 23-2991
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LARRY COCHRAN,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Indiana, Hammond Division.
No. 2:06 CR 114
James T. Moody,
Judge.
O R D E R
While serving a term of supervised release on a federal sentence, Larry Cochran
moved for a writ of coram nobis, a common law remedy that allows courts to correct
serious errors in a criminal case after the defendant leaves custody. See United States v.
Hassebrock, 21 F.4th 494, 498 (7th Cir. 2021). The district court denied the motion because
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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it raised a claim Cochran brought in earlier collateral attacks on his conviction,
including one under 28 U.S.C. § 2255. But because the coram-nobis motion was in
substance a motion under § 2255 that Cochran did not have leave to file, it should have
been dismissed for lack of jurisdiction. Further, to invoke our jurisdiction in this appeal,
Cochran needs a certificate of appealability. But he is not entitled to one, so we dismiss
the appeal.
Cochran was charged in 2006 with possessing with intent to distribute crack
cocaine. See 21 U.S.C. § 841(a) (2006). The district court allowed him to proceed pro se.
Cochran then moved to dismiss the indictment on the ground that it omitted an
element of the offense. Cochran understood the indictment to charge him with violating
the penalty provision of § 841(a)—§ 841(b)(1)(B)(iii). He interpreted § 841(b)(1)(B)(iii) to
prohibit possessing a “mixture or substance described in [§ 841(b)(1)(B)(ii)] which
contains cocaine base.” In his view, the absence in the indictment of any reference to
this phrase meant that the indictment omitted an element of the offense.
The court denied the motion. The court explained that Cochran misunderstood
the indictment and the offense he was accused of committing. He had been charged
with violating not § 841(b)(1)(B)(iii) but § 841(a), and the indictment alleged the
corresponding elements—possessing a controlled substance, crack cocaine, with intent
to distribute. And § 841(b)(1)(B)(iii) was the relevant penalty provision: It did not list
elements of any offense but instead set penalties for violating § 841(a) with respect to
five grams or more of a “mixture or substance described in clause (ii) which contains
cocaine base.” And § 841(b)(1)(B)(ii), in turn, set penalties for doing so with respect to
500 grams or more of a mixture or substance containing any one of four types of
cocaine. See 21 U.S.C. § 841(b)(1)(B)(ii)–(iii) (2006).
The case went to trial in 2007, and a jury convicted Cochran. The district court
sentenced him to 405 months’ imprisonment and 5 years’ supervised release (later
reduced under the First Step Act of 2018 to 240 months’ imprisonment and 3 years’
supervised release). Cochran did not raise on direct appeal his challenge to the
indictment, and we affirmed. United States v. Cochran, 309 F. App’x 2, 5–7 (7th Cir. 2009).
Over the next several years, Cochran filed multiple collateral attacks on his
conviction. Each argued, among other things, that his indictment had been defective
because it had not asserted that he possessed a mixture or substance “described in
clause (ii).” In 2009, for instance, he moved to vacate his conviction under 28 U.S.C.
§ 2255; the district court denied the motion, and we declined to certify an appeal. Two

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years later, he filed a habeas petition under § 2241; the district court denied the petition,
No. 2:11-cv-203-WTL-WGH (S.D. Ind. Jan. 27, 2012), and we affirmed, No. 12-1347
(7th Cir. Apr. 24, 2012). And in 2012 and again in 2021, Cochran asked us under
§§ 2244(b) and 2255(h) for leave to file a successive § 2255 motion; both times we denied
leave. No. 12-2348 (7th Cir. June 28, 2012); No. 21-1210 (7th Cir. Feb. 8, 2021).
Then, in July 2022, Cochran was released from prison and began his term
of supervised release. The following March, he moved for a writ of coram nobis,
again arguing that his conviction was invalid because his indictment had not
specified that he possessed a mixture or substance “described in clause (ii).” The
district court denied the motion because coram-nobis motions cannot raise
claims, like Cochran’s, that were presented in prior collateral attacks. (The court
neither granted nor denied Cochran a certificate of appealability.)
Meanwhile, Cochran’s supervision had been transferred to another district
court, which terminated his supervision under 18 U.S.C. § 3583(e)(1) in July
2023—four months after he had filed his coram-nobis motion.
On appeal, Cochran challenges the denial of his coram-nobis motion. But we
dismiss the appeal for lack of jurisdiction, for two reasons. (No party contests our
jurisdiction, but we must independently determine that it is secure. See India Breweries,
Inc. v. Miller Brewing Co., 612 F.3d 651, 657 (7th Cir. 2010).) First, Cochran needs a
certificate of appealability to appeal from the denial of his motion because in substance
the motion sought relief under § 2255—vacatur of his conviction. Regardless of how he
labeled his motion, a post-judgment motion within the scope of § 2255 counts as a
§ 2255 motion; otherwise, prisoners could use inventive captioning to avoid the
procedural rules governing § 2255 motions. See Adams v. United States, 911 F.3d 397, 404
(7th Cir. 2018); Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004). One such rule is
that a petitioner must obtain a certificate before appealing from the denial of a § 2255
motion, see 28 U.S.C. § 2253(c)(1)(B), including ones that are labeled something else,
Melton, 359 F.3d at 857. Because § 2255 covers challenges to the constitutionality of a
conviction or sentence filed while in custody, including during supervised release,
see Clarke v. United States, 703 F.3d 1098, 1101 (7th Cir. 2013); 28 U.S.C. § 2255(a),
Cochran needs a certificate.
Second, he is not entitled to a certificate of appealability. Where a district court,
as here, denies a § 2255 motion on procedural grounds, a certificate should issue if
reasonable jurists could debate both the procedural ruling and the merits of the motion.
See Rodriguez v. United States, 286 F.3d 972, 978 (7th Cir. 2002) (quoting Slack v. McDaniel,

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529 U.S. 473, 484 (2000)). But we decline to issue a certificate because the district court’s
procedural ruling was correct beyond debate. Federal prisoners may not raise
previously presented claims in a successive § 2255 motion, White v. United States,
371 F.3d 900, 901 (7th Cir. 2004) (citing 28 U.S.C. § 2244(b)(1)), or in a motion for a writ
of coram nobis, see Hassebrock, 21 F.4th at 498. Cochran presented his claim in his prior
collateral attacks, so the district court was unquestionably correct that he could not raise
it again, regardless of the label he put on his motion.
DISMISSED

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