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 2009-07

In Re: Egan v. , 339 F. App'x 314 ( 2009 )


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  •                               UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1575
In Re:   EDWARD JAMES EGAN, SR.,
Petitioner.
On Petition for Writ of Error Coram Nobis.
(7:07-cv-00509-gec-mfu)
Submitted:   July 7, 2009                    Decided:   July 27, 2009
Before TRAXLER, Chief Judge, and MOTZ and SHEDD Circuit Judges.
Petition denied by unpublished per curiam opinion.
Edward James Egan, Sr., Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edward James Egan, Sr., a Virginia inmate, petitions
this court for a writ of error coram nobis,
    28 U.S.C. § 1651
    (a)
(2006).       Egan    challenges        his        2004      Virginia    convictions       for
forcible sodomy, rape, and inanimate object penetration and the
district court’s 2008 dismissal of his
    28 U.S.C. § 2254
     (2006)
petition.
The writ of error coram nobis may not be used to set
aside a state conviction.                 See, e.g., Finkelstein v. Spitzer,
    455 F.3d 131
    , 134 (2d Cir. 2006); Obado v. New Jersey,
    328 F.3d 716
    , 718 (3d Cir. 2003); Lowery v. McCaughtry,
    954 F.2d 422
    , 423
(7th   Cir. 1992);      Sinclair        v.     Louisiana,
    679 F.2d 513
    ,     514
(5th Cir. 1982);       Thomas        v.       Cunningham,
    335 F.2d 67
    ,     69
(4th Cir. 1964);       Rivenburgh             v.        Utah,
    299 F.2d 842
    ,     843
(10th Cir. 1962).       With respect to his challenge to the district
court’s   disposition       of    his     §    2254       petition,      Egan    could    have
raised his claims in a direct appeal to this court.                                      Coram
nobis, however, is not a substitute for direct appeal, and the
writ   will     not   lie    where      there           is   another     adequate    remedy
available.       See United States v. Darnell,
    716 F.2d 479
    , 481
& n.5 (7th Cir. 1983); Azzone v. United States,
    341 F.2d 417
    ,
419 (8th Cir. 1965).
Accordingly,       although          we    grant   leave    to     proceed    in
forma pauperis, we deny the petition for a writ of error coram
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nobis and deny Egan’s motions for an evidentiary hearing and 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.
PETITION DENIED
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