United States v. Hawks ( 2022 )

Case: 21-10167 Document: 00516317189 Page: 1 Date Filed: 05/12/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 12, 2022
No. 21-10167
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Stephen Lynn Hawks,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:99-CR-22-1
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Stephen Lynn Hawks, a former federal prisoner, was convicted in
2000 for failure to pay child support under 18 U.S.C. § 228(a)(3). Later that
year, he unsuccessfully petitioned for habeas relief. In 2021, he filed a pro se
motion under Federal Rule of Civil Procedure 60(d)(3), alleging that his
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-10167 Document: 00516317189 Page: 2 Date Filed: 05/12/2022
No. 21-10167
conviction and the restitution portion of his sentence were procured by fraud
upon the court. The district court denied the motion. Hawks now appeals.
Because Hawks’s Rule 60 motion alleged fraud on the court in
connection with his conviction rather than with his previous habeas
proceeding, federal courts would ordinarily treat such a pro se motion as a
successive habeas petition under 28 U.S.C. § 2255. See United States v.
Cardenas, 13 F.4th 380, 384 (5th Cir. 2021); Gonzalez v. Crosby, 545 U.S. 524,
532 (2005). However, because Hawks is no longer incarcerated, his motion
is properly characterized as a petition for a writ of coram nobis. See United
States v. Hay, 702 F.2d 572, 573–74 (5th Cir. 1983).
Treating Hawks’s motion as such a petition, we conclude that the
district court rightly denied relief. A coram nobis petition may not be used to
relitigate claims that have already been rejected in a proceeding brought
under § 2255. United States v. Esogbue, 357 F.3d 532, 535 (5th Cir. 2004).
Hawks’s claim that his conviction was obtained by fraud upon the court was
considered and rejected in the habeas action he filed in 2000. He is not
entitled to another opportunity to seek postconviction relief on this ground.
Hawks’s appellate brief further alleges that in 2002, government
officials unconstitutionally coerced him into giving up his right to a parole
revocation hearing. But Hawks did not raise this issue before the district
court and has thus not adequately preserved it for appellate review. See
McClellon v. Lone Star Gas Co., 66 F.3d 98, 100 (5th Cir. 1995). Finally,
Hawks alleges that the State of Texas and his ex-wife (to whom he owed the
child support of which he was convicted of not paying) agreed between
themselves in 2006 to relinquish their rights to seek child support arrears.
Even assuming that is true, however, an agreement executed in 2006 does
not invalidate Hawks’s 2000 conviction for failure to pay child support due
at that time. Insofar as Hawks’s filings can be construed as challenging his
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No. 21-10167
restitution obligation imposed as part of his federal sentence, “we have
denied numerous attempts to collaterally attack a restitution order,” United
States v. Parker, 927 F.3d 374, 381 (5th Cir. 2019), including via a petition for
a writ of coram nobis, see Campbell v. United States, 330 F. App’x 482, 483
(5th Cir. 2009) (“A district court lacks jurisdiction to a modify restitution
order under § 2255 [or] a writ of coram nobis”). Nor may Hawks challenge
the restitution order via a writ of audita querela, since he does not concede
that the order was valid at the time it was entered. See United States v. Miller,
599 F.3d 484, 489 (5th Cir. 2010).
AFFIRMED.
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