USA v. Gary Byrd


UNPUBLISHED OPINION ORDER FILED. [16-31244 Affirmed] Judge: WED, Judge: EBC, Judge: PRO. Mandate pull date is 11/17/2017; denying as unnecessary motion for certificate of appealability filed by Appellant Mr. Gary Jefferson Byrd [8433485-2] [16-31244]

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Case: 16-31244 Document: 00514171035 Page: 1 Date Filed: 09/26/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 16-31244 FILED September 26, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. GARY JEFFERSON BYRD, Defendant-Appellant Appeal from the United States District Court for the Western District of Louisiana USDC No. 6:16-CV-1372 USDC No. 6:92-CR-60025-1 Before DAVIS, CLEMENT, and OWEN, Circuit Judges. PER CURIAM: * In 1992 Gary Jefferson Byrd, federal prisoner # 07983-035, was convicted of receiving child pornography through the mail and sentenced to serve 10 years in prison. The district court concluded that the most recent action he filed to challenge this conviction was an unauthorized successive 28 U.S.C. § 2255 motion and dismissed it on this basis. Byrd now moves this court for a certificate of appealability (COA), arguing that this action is a writ of Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 16-31244 Document: 00514171035 Page: 2 Date Filed: 09/26/2017 No. 16-31244 coram nobis and that he is entitled to relief on his claims concerning his innocence. Because Byrd is no longer in custody for the 1992 conviction, he cannot challenge it via a § 2255 motion. See Pack v. Yusuff, 218 F.3d 448, 454 n.5 (5th Cir. 2000). He can, however, bring a writ of coram nobis to challenge this conviction. See United States v. Dyer, 136 F.3d 417, 422 (5th Cir. 1998). Because this action is best classed as sounding in coram nobis, not § 2255, Byrd’s COA motion is DENIED AS UNNECESSARY. The writ of coram nobis may be used to correct only fundamental errors that result in a complete miscarriage of justice. Dyer, 136 F.3d at 430. Because Byrd’s claims could have been presented sooner, he has not met this standard. See id. AFFIRMED. 2

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