In re: Kenya Evans ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1951
In re: KENYA ANTWAIN EVANS
Petitioner.
On Petition for a Writ of Error Coram Nobis
(No. 1:99-cr-00251-NCT-1)
Submitted: September 11, 2012 Decided: September 13, 2012
Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Kenya Antwain Evans, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenya Antwain Evans petitions this court for a writ of
error coram nobis pursuant to 28 U.S.C. § 1651(a) (2006). In
his petition, Evans challenges the constitutionality of his
convictions and sentence for carjacking and possession and
brandishing of a firearm in relation to a crime of violence,
based on Carachuri Rosendo v. Holder, 130 S. Ct. 2589 (2010),
and United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc).
The writ of error coram nobis is an extraordinary
remedy which may be used to correct fundamental error in a
criminal conviction “presenting circumstances compelling its use
to achieve justice.” United States v. Denedo, 556 U.S. 904, 911
(2009) (internal quotation marks omitted); see United States v.
Akinsade, 686 F.3d 248, 252 (4th Cir. 2012). Remedy under the
writ is limited to those petitioners who are no longer in
custody pursuant to their convictions. Carlisle v. United
States, 517 U.S. at 416, 429 (1996). Moreover, the remedy will
not lie when an alternative remedy, such as habeas corpus, is
available. Denedo, 556 U.S. at 911; Akinsade, 686 F.3d at 252.
Evans is currently in custody pursuant to his
convictions, and he previously challenged his convictions and
sentence in a motion filed pursuant to 28 U.S.C.A. § 2255 (West
Supp. 2012). While Evans’s present challenge was not previously
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raised in his § 2255 motion, he has not sought authorization to
file a successive § 2255 motion. Thus, we conclude that Evans
fails to establish entitlement to the extraordinary remedy of
the writ.
Accordingly, we deny Evans’s petition for a writ of
error coram nobis. 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.
PETITION DENIED
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