United States v. Charles Malouff, Jr.

613 F. App'x 432

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 21, 2015
• Docket: 14-20771
• Status: Unpublished

Opinion

PER CURIAM: *

Charles A. Malouff, Jr., now Texas prisoner # 1978590, was convicted of the unlawful transfer of firearms and was sentenced to three years of probation on January 8, 2007. He now appeals from the district court’s denial of his petition for a writ of coram nobis.

The writ of coram nobis is an extraordinary remedy available in the federal courts pursuant to the All Writs Act as an avenue of collateral attack when a prisoner has completed his sentence and is no longer in custody for purposes of seeking relief under 28 U.S.C. § 2241 and 28 U.S.C. § 2255. United, States v. Dyer, 136 F.3d 417, 422 (5th Cir.1998); see also 28 U.S.C. § 1651(a). It is employed only in compelling circumstances to correct fundamental error and avoid a miscarriage of justice. Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir.1996). A writ of coram nobis is not a substitute for an appeal. Dyer, 136 F.3d at 422. To prevail, the petitioner must present a sound reason for failing to seek appropriate relief earlier. Id.

All of Malouff s substantive claims could have been raised either on direct appeal or in a motion under 28 U.S.C. § 2255. Malouff argues that he could not have raised any claim based on his vagueness argument prior to his discovery of United States v. Vest, 448 F.Supp.2d 1002 (S.D.Ill.2006). He gives no reason for his failure to discover the case for eight years except that he is a lay person. As he has failed to make the necessary showing of a complete miscarriage of justice, the district court did not err by denying his petition for a writ of coram nobis. See United States v. Esogbue, 357 F.3d 532, 535 (5th Cir.2004).

The judgment of the district court is AFFIRMED. Malouffs motion for appointment of counsel is DENIED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.