United States v. Theodore Howze, Jr. , 521 F. App'x 164 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6467
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
THEODORE HOWZE, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen,
Senior District Judge. (3:98-cr-00299-GCM-1)
Submitted: May 7, 2013 Decided: May 10, 2013
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Theodore Howze, Jr., Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Theodore Howze, Jr., a federal prisoner, appeals the
district court’s order denying his petition for writ of error
coram nobis. Finding no error, we affirm.
“Coram nobis is an extraordinary remedy that has
traditionally been used to attack [federal] convictions with
continuing consequences when the petitioner is no longer in
custody for purposes of 28 U.S.C. § 2255.” United States v.
Rhines, 640 F.3d 69, 71 (3d Cir. 2011) (internal quotation marks
omitted). A petitioner “may not resort to a writ of error coram
nobis simply because he cannot meet the standards for filing a
second or successive § 2255 motion.” Id. at 72.
Here, Howze sought, by way of coram nobis, to benefit
from our decision in United States v. Simmons, 649 F.3d 237 (4th
Cir. 2011) (en banc). We previously denied Howze’s 28 U.S.C.
§ 2244 (2006) motion, in which he sought leave to file a
successive § 2255 motion raising the Simmons issue. Howze also
has sought relief under Simmons by way of a § 2255 motion, which
the district court denied.
We conclude that the district court did not abuse its
discretion in denying relief. Not only is Howze incarcerated,
but coram nobis is unavailable to a petitioner, such as Howze,
who seeks through the writ to evade the limitation on second or
successive § 2255 motions.
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We therefore affirm. 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
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