United States v. Grant

Case: 21-20573 Document: 00516312159 Page: 1 Date Filed: 05/09/2022

United States Court of Appeals for the Fifth Circuit

United States Court of Appeals Fifth Circuit FILED May 9, 2022 No. 21-20573 Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee, versus

Howard Grant,

Defendant—Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:21-CV-3296

Before Smith, Higginson, and Willett, Circuit Judges.

Per Curiam:*

Howard Grant, former federal prisoner # 43671-279, was convicted by jury in 2010 of conspiracy to commit health care fraud and two counts of aiding and abetting health care fraud. He seeks a certificate of appealability (COA) to appeal the district court’s dismissal of his Federal Rule of Civil Procedure 60(b) motion as a successive and unauthorized 28 U.S.C. § 2255

Case: 21-20573 Document: 00516312159 Page: 2 Date Filed: 05/09/2022

No. 21-20573 motion. Because, as discussed below, the district court should have construed the motion as a petition for a writ of coram nobis, and as the denial of coram nobis relief is not a final order in a § 2255 proceeding, see 28 U.S.C. § 2253(c)(1)(B), we DENY a COA as UNNECESSARY.

A person seeking habeas relief must be in custody at the time relief is sought. Maleng v. Cook, 490 U.S. 488, 490-91 (1989); see also United States v. Esogbue, 357 F.3d 532, 534 (5th Cir. 2004). A person who is no longer in custody may not obtain § 2255 relief, either in an original or successive motion. Esogbue, 357 F.3d at 534. Accordingly, the district court should have construed Grant’s motion as a petition for writ of coram nobis rather than an unauthorized successive § 2255 motion. See id. We nevertheless decline to remand because Grant’s allegations do not support coram nobis relief, see id. at 534-35, and we AFFIRM the judgment on that alternative ground.