USCA11 Case: 21-11435 Date Filed: 10/25/2021 Page: 1 of 5

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 21-11435 Non-Argument Calendar ____________________

JAMES MOZIE, Petitioner-Appellant, versus UNITED STATES OF AMERICA,

Respondent-Appellee.

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Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:21-cv-60823-WPD ____________________ USCA11 Case: 21-11435 Date Filed: 10/25/2021 Page: 2 of 5

2 Opinion of the Court 21-11435

Before WILSON, ROSENBAUM, and BLACK, Circuit Judges. PER CURIAM: James Mozie, a federal prisoner, appeals the district court’s dismissal without prejudice and, alternatively, denial of his petition for writ of error coram nobis under 28 U.S.C. § 1651(a). He asserts the district court erred when it rejected his argument that the court in the underlying action lacked subject-matter jurisdiction over his conviction for production of child pornography. The court deter- mined his argument was not cognizable under the All Writs Act and his petition was, in essence, an unauthorized 28 U.S.C. § 2255 motion to vacate his sentence. The Government responds by mov- ing for summary affirmance of the district court’s order and a stay of the briefing schedule, contending that coram nobis relief was not available to Mozie because he was still in custody and his petition was an unauthorized successive § 2255 motion. Mozie has filed a motion in opposition of the Government’s motion for summary affirmance. After review, 1 we grant the Government’s motion for summary affirmance.

1 We review a district court’s denial of a writ of error coram nobis for abuse of discretion. United States v. Bane, 948 F.3d 1290, 1294 (11th Cir. 2020). We review de novo whether a 28 U.S.C. § 2255 motion is second or successive. Armstrong v. United States, 986 F.3d 1345, 1348 (11th Cir. 2021). USCA11 Case: 21-11435 Date Filed: 10/25/2021 Page: 3 of 5

21-11435 Opinion of the Court 3

The writ of error coram nobis is an extraordinary remedy of last resort that is available only in compelling circumstances where necessary to achieve justice. United States v. Mills, 221 F.3d 1201, 1203 (11th Cir. 2000). Federal courts have the authority to issue such a writ under the All Writs Act. Id. A writ of error coram nobis is unavailable to a petitioner who is still in custody; whereas 28 U.S.C. § 2255 relief is available to a petitioner who is in custody. United States v. Garcia, 181 F.3d 1274, 1274 (11th Cir. 1999); 28 U.S.C. § 2255(a). It is clear as a matter of law the district court correctly con- strued Mozie’s coram nobis petition as a § 2255 motion and dis- missed it without prejudice as an unauthorized second or succes- sive § 2255 motion. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969) 2 (explaining summary disposition is ap- propriate where “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case, or where, as is more frequently the case, the appeal is frivolous”). The district court was required to liberally construe Mozie’s application for post-conviction relief and to con- strue it as brought under the proper statutory framework for seek- ing relief. See United States v. Brown, 117 F.3d 471, 475 (11th Cir. 1997) (stating pro se applications for post-conviction relief are to be

2In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Cir- cuit handed down prior to close of business on September 30, 1981. USCA11 Case: 21-11435 Date Filed: 10/25/2021 Page: 4 of 5

4 Opinion of the Court 21-11435

liberally construed and pleadings erroneously styled as coram nobis petitions should be treated as § 2255 motions, and vice versa). Mozie’s challenge that the district court lacked jurisdiction as to Count 10 of the third superseding indictment was potentially cognizable under § 2255 and coram nobis. See Alikhani v. United States, 200 F.3d 732, 734 (11th Cir. 2000) (explaining a claim the district court lacked jurisdiction to adjudicate the petitioner guilty is cognizable in a coram nobis petition); 28 U.S.C. § 2255(a) (provid- ing a claim the district court “was without jurisdiction to impose [a] sentence” may be properly raised in a motion brought under § 2255). But as Mozie is still in custody, the district court properly construed his petition as a § 2255 motion because the remedies un- der § 2255 were available to him and coram nobis relief was una- vailable. See Brown, 117 F.3d at 475. Because Mozie previously filed a § 2255 motion that was denied with prejudice and failed to obtain this Court’s authorization to file a second or successive § 2255 motion, it is clear as a matter of law that the district court correctly dismissed his construed second or successive § 2255 mo- tion without prejudice for lack of jurisdiction. Armstrong v. United States, 986 F.3d 1345, 1348 (11th Cir. 2021) (stating a federal pris- oner who wishes to file a second or successive motion to vacate, set aside, or correct sentence is required to obtain an order from this Court authorizing the district court to consider such a motion and if a movant fails to obtain our authorization, the district court must dismiss a second or successive § 2255 motion for lack of juris- diction). USCA11 Case: 21-11435 Date Filed: 10/25/2021 Page: 5 of 5

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Moreover, contrary to Mozie’s assertion in his filing oppos- ing summary affirmance, even if his conviction on Count 10 were found to be invalid, he would remain in custody serving multiple concurrent life sentences. In re Williams, 826 F.3d 1351, 1356 (11th Cir. 2016) (stating under the concurrent-sentence doctrine, where a defendant has concurrent sentences on multiple counts of con- viction and one count is found to be invalid, we “need not consider the validity of the other counts unless the defendant would suffer adverse collateral consequences from the unreviewed conviction” (quotation marks omitted)). Finally, although a jurisdictional chal- lenge is cognizable in a coram nobis petition, the challenge that Mozie sought to bring here was not jurisdictional, as an indict- ment’s failure to state an offense does not divest the district court of jurisdiction. Alikhani, 200 F.3d at 734 (recognizing that courts have rejected the assertion that a failure to allege an interstate-com- merce nexus deprives the district court of jurisdiction). Thus, in light of the above, the Government’s position is “clearly right as a matter of law” and there is no substantial ques- tion that the district court properly dismissed Mozie’s petition for a writ of error coram nobis without prejudice for lack of subject- matter jurisdiction and, alternatively, on the merits. See Groen- dyke Transp., 406 F.2d at 1162. Accordingly, we GRANT the Gov- ernment’s motion for summary affirmance and DENY as moot its motion to stay the briefing schedule. We also DENY Mozie’s mo- tion in opposition of summary affirmance.