USA v. Clarence Clay

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 10, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-13517
Non-Argument Calendar
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D.C. Docket No. 2:99-cr-00137-MHT-CSC-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLARENCE CLAY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(February 10, 2012)
Before BARKETT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Clarence Clay appeals the district court’s denial of his pro se motion for a

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writ of error coram nobis. We review a district court’s denial of coram nobis
relief for abuse of discretion. Alikhani v. United States, 200 F.3d 732, 734 (11th
Cir. 2000) (per curiam). Upon review of the record and consideration of the
parties’s briefs, we find no abuse of discretion. Therefore, we affirm.
“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, as is
required for post-conviction relief under 28 U.S.C. § 2255.” United States v.
Peter, 310 F.3d 709, 712 (11th Cir. 2002) (per curiam). The extraordinary remedy
is “available only in compelling circumstances where necessary to achieve
justice.” United States v. Mills, 221 F.3d 1201, 1203 (11th Cir. 2000). A
petitioner may only obtain this relief where “there is and was no other available
avenue of relief,” and “the error involves a matter of fact of the most fundamental
character which has not been put in issue or passed upon and which renders the
proceeding itself irregular and invalid.” Alikhani, 200 F.3d at 734 (citation and
internal quotation marks omitted).
Here, Clay is not entitled to the extraordinary remedy. His arguments are
each predicated on his complaint that a jury was unable to reach a unanimous
agreement as to the quantity of drug attributable to his crime of conviction. When
Clay raised the issue on direct appeal from his conviction, we found that the
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argument lacked merit. United States v. Clay, 376 F.3d 1296, 1300–01 (11th Cir.
2004). Clay was also unsuccessful in obtaining relief when he raised the issue in
both a § 2255 motion and a self-styled motion for relief under Federal Rule of
Civil Procedure 60. The issue was previously litigated, and we do not find that the
extraordinary remedy is warranted. See Alikhani, 200 F.3d at 734.
AFFIRMED.
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