United States v. Few

372 F. App'x 564

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 9, 2010
• Docket: 08-50419
• Status: Unpublished

Opinion

PER CURIAM: *

Lawrence New has filed a motion for a certificate of appealability (COA) to appeal the district court’s denial of his petition for a writ of coram nobis in which he challenges the validity of his conviction for making a false material statement to a federal agent. New was sentenced to two years of probation, with 90 days of home confinement, a fine of $2000, and a special assessment of $100.

Although New originally characterized his pleading as a 28 U.S.C. § 2255 motion, he acknowledges that he is not entitled to challenge his conviction under that provision because he was not in federal custody when he filed his pleading. See 28 U.S.C. § 2255(a). He has therefore waived that claim and is not required to obtain a COA for it. There is no requirement to obtain a COA in order to appeal the denial of a petition for a writ of coram nobis. United States v. Kwan, 407 F.3d 1005, 1009 (9th Cir.2005); Rodriguez v. Johnson, No. 00-50225, 2000 WL 1901607, *1 (5th Cir.2000) (unpublished); United States v. Baptiste, 223 F.3d 188, 189 n. 1 (3d Cir.2000).

Treating Few’s filing as an appeal of the district court’s denial of his petition for a writ of coram nobis, we hold that the district court did not abuse its discretion in denying the writ. We have previously determined on direct appeal that there was sufficient evidence to support the jury’s finding that New made a false representation to the agent. See United States v. Few, 62 Fed.Appx. 557 (5th Cir.2003) (unpublished); 18 U.S.C. § 1001. New has failed to overcome the presumption that the underlying criminal proceedings were correct, and he has not shown a fundamental error that resulted in a complete miscarriage of justice. See United States v. Dyer, 136 F.3d 417, 422 (5th Cir.1998); Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir.1996).

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.