United States v. Latchmie Toolasprashad ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6586
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LATCHMIE NARAYAN TOOLASPRASHAD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Fayetteville. Terrence W. Boyle,
District Judge. (3:85-cr-00045-BO-1)
Submitted: July 19, 2012 Decided: July 26, 2012
Before DUNCAN, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Latchmie Narayan Toolasprashad, Appellant Pro Se. Rudolf A.
Renfer, Jr., Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Latchmie Narayan Toolasprashad appeals the district
court’s orders treating his filing as a successive 28 U.S.C.A.
§ 2255 (West Supp. 2012) motion, and dismissing it on that basis
and denying his motion for reconsideration. In 1986,
Toolasprashad was convicted of murder and sentenced to life
imprisonment. He has since sought relief from his conviction
and sentence under § 2255 and could not seek relief again
without authorization from this court. 28 U.S.C.A. § 2255(h).
In his motion for reconsideration, Toolasprashad claimed that he
was no longer in custody for the murder conviction and that his
filing was a writ of error coram nobis. We conclude the court
correctly found that Toolasprashad was not eligible to be
considered for coram nobis relief based on the finding that he
was on parole and still in custody. See Jones v. Jerrison, 20
F.3d 849, 852 (8th Cir. 1994) (a parolee remains in custody for
purposes of a habeas corpus petition). Accordingly, we affirm
the district court’s orders.
Additionally, we construe Toolasprashad’s notice of
appeal and informal brief as an application to file a second or
successive § 2255 motion. United States v. Winestock, 340 F.3d
200, 208 (4th Cir. 2003). In order to obtain authorization to
file a successive § 2255 motion, a prisoner must assert claims
based on either: (1) newly discovered evidence, not previously
2
discoverable by due diligence, that would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found
the movant guilty of the offense; or (2) a new rule of
constitutional law, previously unavailable, made retroactive by
the Supreme Court to cases on collateral review. 28 U.S.C.A.
§ 2255(h) (West Supp. 2012). Toolasprashad’s claim that he is
entitled to relief under the rule announced in Padilla v.
Kentucky, 130 S. Ct. 1473 (2010) does not satisfy either of
these criteria. Therefore, we deny authorization to file a
successive § 2255 motion.
Accordingly, we affirm. We deny Toolasprashad’s
motion for appointment of counsel. 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
3