United States v. Lester , 453 F. App'x 810 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 30, 2011
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 11-3245
v. (D.C. No. 2:06-CR-20151-JWL-1)
(D. Kansas)
JERRY L. LESTER,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Jerry Lester appeals the denial of his petition for writ of error coram nobis
by the United States District Court for the District of Kansas. We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
Lester was convicted in Kansas federal district court on charges of making
false statements in connection with the acquisition of firearms and being an
unlawful user of a controlled substance while in possession of firearms. See
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
18 U.S.C. § 922. He was sentenced to 27 months’ imprisonment and ordered to
pay a $6000 fine. He unsuccessfully appealed to this court. See United States v.
Lester, 285 F. App’x 542 (10th Cir. 2008). After he completed his sentence of
incarceration and supervised release, but while still making installment payments
on his fine, he filed his coram nobis petition, which was denied by the district
court.
On appeal Lester challenges the district court’s rejection of his claim that
his statement admitted at trial should have been excluded under 18 U.S.C. § 3501.
The government responds that it was improper to raise this claim in a petition for
writ of error coram nobis. We agree. Lester correctly argues that various
grounds for dismissing such a petition are not applicable here (for example, he
points out that he is no longer in custody so he cannot file a motion under §
2255). But there is at least one ground that required the district court to dismiss
the petition. A writ of error coram nobis cannot issue when another remedy was
adequate and available. See United States v. Payne, 644 F.3d 1111, 1112 (10th
Cir. 2011). Lester has failed to show that he could not have raised his § 3501
argument on direct appeal or in a motion under 28 U.S.C. § 2255.
We AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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