Case: 13-12463   Date Filed: 07/03/2014   Page: 1 of 4


                                                       [DO NOT PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                          No. 13-12463
                      Non-Argument Calendar
                    ________________________

                 D.C. Docket No. 9:13-cv-80376-KAM


JULIEN GARCON,

                                                          Plaintiff-Appellant,


                                versus



STATE OF FLORIDA,
ATTORNEY GENERAL,
JANE DOE,
CRUZ,
WARDEN, FCI WILLIAMSBURG,

                                                     Respondents-Appellees.

                    ________________________

             Appeal from the United States District Court
                 for the Southern District of Florida
                   ________________________

                            (July 3, 2014)
              Case: 13-12463     Date Filed: 07/03/2014   Page: 2 of 4


Before TJOFLAT, JORDAN, and FAY, Circuit Judges.

PER CURIAM:

      Julien Garcon, a federal prisoner proceeding pro se, appeals the district

judge’s denial of his petition for a writ of error coram nobis. We affirm.

                                I. BACKGROUND

      Garcon is currently serving a 120-month sentence of imprisonment for

possession of a firearm by a felon. His status as a felon resulted from state armed-

robbery convictions. On direct appeal, we affirmed his federal conviction and

sentence. United States v. Garcon, 349 F. App’x 377 (11th Cir. 2009) (per

curiam). He later filed a 28 U.S.C. § 2255 motion, which was denied.

      In his petition for a writ of error coram nobis, Garcon challenges the state

convictions underlying his federal conviction. In a report and recommendation, the

magistrate judge construed the petition as a § 2255 motion, because Garcon

essentially was attacking his federal conviction. Since this was Garcon’s second §

2255 motion, the magistrate judge recommended dismissing it as second or

successive. See 28 U.S.C. §§ 2255(h), 2244(b)(3)(A). The district judge adopted

the report and recommendation and denied Garcon’s petition.

                                 II. DISCUSSION

      On appeal, Garcon raises 28 claims that challenge his underlying state

convictions, since they were used as a predicate for his federal crime. Because of


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liberal construction of pro se pleadings, we evaluate whether Garcon is entitled to

relief under 28 U.S.C. § 2254, 28 U.S.C. § 2255, or coram nobis. See Boxer X v.

Harris, 

, 1110 (11th Cir. 2006).

A. 28 U.S.C. § 2254 Relief

      Garcon seeks the invalidation of state convictions, relief generally pursued

in a § 2254 habeas petition. To bring a § 2254 petition, a petitioner must be in

state custody. Medberry v. Crosby, 

, 1060 (11th Cir. 2003).

Because Garcon is no longer in state custody, he cannot seek relief under § 2254.

See Means v. Alabama, 

, 1242 (11th Cir. 2000) (per curiam) (“[A]

petitioner who challenges an expired state sentence that was used to enhance his

current federal sentence must bring his suit under 28 U.S.C. § 2255.”).

B. 28 U.S.C. § 2255 Relief

      When a pro se litigant seeks habeas relief through other writs or actions, we

construe the request under the appropriate statute. Pursuant to Means, § 2255 is

the correct statute. See 

do not construe coram nobis petitions as habeas

petitions, when that construction would result in the dismissal of the petition as

second or successive. See United States v. Garcia, 

, 1275 (11th Cir.

1999) (per curiam). The district judge correctly interpreted Garcon’s challenge to

his state convictions as an attack on his federal conviction. Garcon’s petition

should not have been construed as a § 2255 motion, because that construction


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would mean his petition necessarily would be dismissed as second or successive.

For those reasons, Garcon did not seek § 2255 relief, to which he would not be

entitled.

C. Writ of Error Coram Nobis

       “A writ of error coram nobis is a remedy available to vacate a conviction

when the petitioner has served his sentence and is no longer in custody . . . .”

United States v. Peter, 

, 712 (11th Cir. 2002) (per curiam). Because

Garcon is still in federal custody, he cannot seek coram nobis relief for his federal

conviction. To the extent that Garcon attempts to use this federal coram nobis

petition to challenge his state conviction, he is in the wrong forum. We have

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

state criminal judgment.” Theriault v. Mississippi, 

, 657 (5th Cir.

1968) (per curiam). 1 If Garcon seeks to bring a coram nobis petition to challenge

his state conviction, then he must do it in state court.

                                   III. CONCLUSION

       Although the district judge construed Garcon’s coram nobis petition as a §

2255 motion, we conclude Garcon was not entitled to coram nobis relief.

       AFFIRMED.


       1
         The Eleventh Circuit adopted as binding precedent all decisions of the former Fifth
Circuit handed down prior to October 1, 1981. Bonner v. City of Pritchard, 

, 1209
(11th Cir. 1981) (en banc).
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