Clark v. USA , 112 F. App'x 368 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT November 9, 2004
Charles R. Fulbruge III
Clerk
No. 04-10269
Summary Calendar
MARK ANTHONY CLARK,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA; N.L. CONNORS, Warden; UNITED STATES
PENITENTIARY-LEAVENWORTH,
Respondent-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
(5:03-CV-247-C)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Mark Anthony Clark, federal prisoner #26409-077, appeals, pro
se, the denial and dismissal of his petition seeking a writ of
coram nobis, a writ of audita querela, mandamus, and other relief
pursuant to 28 U.S.C. § 1651.
The writ of coram nobis may be used to collaterally attack
sentences under 28 U.S.C. §§ 2241 or 2255 “when the petitioner has
completed his sentence and is no longer in custody”. United States
v. Dyer, 136 F.3d 417, 422 (5th Cir. 1998) (internal quotation
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 CIR. R. 47.5.4.
marks omitted). Because Clark remains in custody, he is not
entitled to a writ of coram nobis.
The writ of audita querela is not available when the prisoner
has a remedy under § 2255. United States v. Banda, 1 F.3d 354, 356
(5th Cir. 1993). Neither an unsuccessful § 2255 motion nor an
inability to meet the requirements for a successive § 2255 motion
will render the § 2255 remedy unavailable. See Tolliver v. Dobre,
211 F.3d 876, 878 (5th Cir. 2000).
Clark also seeks a writ of mandamus to direct the district
court to comply with this court’s prior order of remand. Mandamus
is an extraordinary remedy, available only when a petitioner
establishes: “(1) a clear right to the relief, (2) a clear duty by
the respondent to do the act requested, and (3) the lack of any
other adequate remedy”. In re Stone, 118 F.3d 1032, 1034 (5th Cir.
1997). Such relief is not available to Clark, because Clark could
have raised his claims in either a direct appeal from the
proceedings on remand or a § 2255 motion.
Because Clark specifically disclaimed that he is seeking
relief under either 28 U.S.C. § 2241 or 28 U.S.C. § 2255, we do not
consider Clark’s brief as a motion for authorization to file a
successive § 2255 motion.
AFFIRMED
2