USA v. Gary Byrd

Filing

UNPUBLISHED OPINION ORDER FILED.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]

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.

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