Monodu Ajao v. United States of America

ALD-39 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 07-3373
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MONODU AJAO,
Appellant
v.
UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 06-5484)
District Judge: Honorable Dickinson R. Debevoise
____________________________________
Submitted for Possible Issuance of a Certificate of Appealability Pursuant to 28 U.S.C. §
2253(c)(1)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
November 1, 2007
Before: SLOVITER, FISHER and HARDIMAN, Circuit Judges
(Opinion filed: November 30, 2007)
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OPINION
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PER CURIAM
Monodu Ajao appeals from an order of the United States District Court for the
District of New Jersey denying his petition for a writ of error coram nobis. As the appeal

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As recognized by the District Court, a certificate of appealability is not necessary. By1
the terms of 28 U.S.C. § 2253(c)(1)(B), a certificate of appealability is only necessary for
appeals from orders denying § 2255 motions. See United States v. Baptiste, 223 F.3d
188, 189 n. 1 (3d Cir. 2000).
2
presents no substantial question, we will summarily affirm the order of the District Court,
although on grounds different from those articulated by the District Court.1
In 1986, Ajao was convicted in the United States District Court for the Southern
District of Texas for participating in a drug conspiracy. After several years of
incarceration, Ajao was paroled, and he absconded. Ajao was subsequently arrested in
the District of New Jersey, also for a drug conspiracy offense, and the United States
Parole Commission lodged a detainer against him for multiple parole violations. Ajao
agreed to cooperate with the U.S. Attorney’s Office for the District of New Jersey. He
pled guilty, and the U.S. Attorney’s Office moved for a downward departure at the time
of Ajao’s sentencing. The District Court in the District of New Jersey sentenced Ajao to
120 months imprisonment, five years supervised release and a fine. After Ajao had
served his prison sentence for the offense in the District of New Jersey, the Parole
Commission conducted a parole revocation hearing and imposed an additional ten years
imprisonment on Ajao for his multiple parole violations, including his criminal activities
in the District of New Jersey.
Ajao subsequently filed a petition for a writ of error coram nobis, pursuant to 28
U.S.C. § 1651, seeking to invalidate his guilty plea in the District of New Jersey. The

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Because the petition fails for procedural reasons, we express no opinion on the merits2
of Ajao’s claims.
3
District Court issued a notice and order pursuant to United States v. Miller, 197 F.3d 644
(3d Cir. 1999). Ajao refused to characterize his petition as a motion to vacate or correct
his sentence under 28 U.S.C. § 2255 because he believed he was not in “custody” in
connection with his conviction in the District of New Jersey, and that, therefore, he could
not proceed under § 2255.
Coram nobis relief is available only to a petitioner who is not in “custody.” United
States v. Stoneman, 870 F.2d 102 (3d Cir. 1989). A defendant serving a term of
supervised release remains in “custody” and cannot obtain relief through a writ of error
coram nobis. United States v. Sandles, 469 F.3d 508, 517 (6th Cir. 2006). Although
Ajao is no longer incarcerated in connection with his conviction in the District of New
Jersey, there is no indication that Ajao’s five year term of supervised release was ever
vacated or amended. Ajao completed his prison sentence for his District of New Jersey
offense in June 2006, such that it would be physically and temporally impossible for him
to have completed five years of supervised release by this time. Thus, his term of
supervised release remains unserved, and Ajao is still in “custody” in connection with his
conviction in the District of New Jersey. Accordingly, a writ of error coram nobis is not
available to him, Sandles, 469 F.3d at 517, and we will summarily affirm the District
Court’s order to the extent that it dismissed his petition.2

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