United States v. Valdez

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 4, 2003
• Docket: 03-6495
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-6495

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ADOLFO VALDEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (CR-92-9-7-F)

Submitted: August 28, 2003 Decided: September 4, 2003

Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Adolfo Valdez, Appellant Pro Se. Robert Edward Skiver, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Adolfo Valdez seeks to appeal the district court’s order

denying his petition for a writ of error coram nobis filed under 28

U.S.C. § 1651 (2000). We have reviewed the record and the district

court’s order and find no reversible error. A writ of error coram

nobis is available only when the petitioner is not in custody. See,

e.g., United States v. Sawyer, 239 F.3d 31, 37 (1st Cir. 2001).

Because Valdez is in federal custody and has filed a prior motion

under 28 U.S.C. § 2255 (2000), he may not circumvent the

gatekeeping provisions of § 2255 ¶ 8 and 28 U.S.C. § 2244 (2000),

by filing a petition under § 1651. United States v. Noske, 235

F.3d 405, 406 (8th Cir. 2000). Accordingly, we affirm the district

court’s order denying relief. We dispense with oral argument

because the facts and legal contentions are adequately presented in

the materials before the court and argument would not aid the

decisional process.

AFFIRMED