ALD-003 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 21-1717 ___________

ALLEN DUPREE GARRETT, Appellant

v.

UNITED STATES OF AMERICA ____________________________________

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 1-19-cv-12359) District Judge: Honorable Renée M. Bumb ____________________________________

Submitted on Appellee’s Motion for Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6 October 7, 2021

Before: JORDAN, RESTREPO and SCIRICA, Circuit Judges

(Opinion filed: October 15, 2021) _________

OPINION* _________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM

Pro se appellant Allen Garrett appeals the District Court’s order denying in part

and dismissing in part his petition for coram nobis. The Government has filed a motion

to summarily affirm. For the reasons discussed below, we grant the Government’s

motion and will summarily affirm the District Court’s order.

In 2012, Garrett pleaded guilty to one count of being a felon in possession of a

firearm and was sentenced to 77 months’ imprisonment followed by three years of

supervised release. See D.N.J. Cr. A. No. 1:11-cr-00242. Garrett obtained no relief

either on direct appeal or through

proceedings.

In 2019, Garrett filed a coram nobis petition. The District Court ruled that coram

nobis was unavailable to Garrett because, at that point, he remained in custody. See ECF

No. 2. Garrett appealed, but we dismissed his appeal as untimely. See C.A. No. 19-

3029, ECF No. 37. Garrett then filed, across three documents, see ECF Nos. 11–13, what

the District Court reasonably interpreted to be a new petition for coram nobis and a civil

complaint. The Court directed the Clerk to open a new civil case and to file the

complaint in the new case. As for the coram nobis petition, the Court dismissed the

petition to the extent it sought money damages and denied it to the extent it challenged

2 Garrett’s conviction. Garrett appealed, and has filed a variety of documents in this

Court.1

We have jurisdiction pursuant to

and exercise de novo review

over legal issues arising from the denial of coram nobis relief. See United States v.

Rhines,

(3d Cir. 2011) (per curiam). We may take summary action if an

appeal fails to present a substantial question. See 3d Cir. I.O.P. 10.6.

We agree with the District Court’s analysis of this case. A petitioner seeking a

writ of coram nobis must assert an error of a fundamental kind that had no remedy at the

time of the criminal proceeding. Ragbir v. United States,

, 62 (3d Cir. 2020).

A fundamental error is one that undermines the jurisdiction of the trial court and

invalidates the proceeding.

. The Supreme Court has noted that “it is difficult to

conceive of a situation in a federal criminal case today where a writ of coram nobis

would be necessary or appropriate.” Carlisle v. United States,

(1996)

(internal alteration and quotation marks omitted).

Garrett argues primarily that his criminal judgment is invalid because the records

in that case spelled his first name “Alan” rather than “Allen.” We note, however, that the

indictment used both spellings, including the latter as an “a/k/a.” See D.N.J. Cr. A. No.

1 We are aware that Garrett is currently litigating in another action whether he has three strikes under the PLRA. We express no opinion on that here. We will assume without deciding that, even if the PLRA’s three strike rule applies to an appeal involving a coram nobis petition, Garrett may proceed IFP in this case. See Alexander v. Texas Dept. of Crim. Justice,

, 241 n.15 (5th Cir. 2020). 3 1:11-cr-00242, dkt. #12. In any event, Garrett does not dispute that he was the person

identified in these documents; thus, even assuming that there was an error here, it falls far

short of the magnitude needed to warrant coram nobis relief. See generally Grannis v.

Ordean,

(1914) (stating that due process “does not require ideal

accuracy” of spelling, “even in names”); United States v. Fawcett,

(3d

Cir. 1940) (“An indictment, then, is an accusation of a person of crime. It is an

accusation against a person, and not against a name. A name is not of the substance of an

indictment.”); see also United States v. Emuegbunam,

(6th Cir. 2001)

(“Emuegbunem’s argument that the misspelling of his name vitiates the indictment is

likewise unavailing. ‘A name need not be correctly spelled in an indictment, if

substantially the same sound is preserved.’”) (quoting Faust v. United States,

(1896)).2

Garrett’s diffuse filings may also be read to challenge state convictions, but

“coram nobis is not available in a federal court as a means of attack on a state criminal

judgment.” Obado v. New Jersey,

(3d Cir. 2003) (per curiam).

Garrett also seems to seek to challenge the disposition of prior civil judgments, but coram

nobis in civil cases has been abolished by Federal Rule of Civil Procedure 60. See Fed.

2 It is not clear whether Garrett remained in custody at the time he filed this petition; if he was still in custody, the petition fails for that reason, too. See United States v. Baptiste,

(3d Cir. 2000) (per curiam) (“There is no basis here for coram nobis relief, because Baptiste is still in custody.”).

4 R. Civ. P. 60(e); United States v. Beggerly,

(1998). And the District

Court properly concluded that it lacked jurisdiction to the extent that Garrett sought

damages because that remedy is not available in this context. See generally United States

v. Doe,

(3d Cir. 2015) (stating that a habeas Court would lack

jurisdiction over claim seeking damages).3

Accordingly, we grant the Government’s motion and will summarily affirm the

District Court’s judgment. To the extent that Garrett requests any additional relief, it is

denied.

3 Nor did the District Court err in directing that the civil complaint be filed as a separate case. See Patton v. Jefferson Corr. Ctr.,

, 463–64 (5th Cir. 1998); see generally Drippe v. Tobelinski,

(3d Cir. 2010) (explaining that “we accord district courts great deference with regard to matters of case management”). 5