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United States v. Schreiber ( 2002 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50213
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HARRY SCHREIBER,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-95-CR-130-1-JN
USDC No. A-00-CV-816-JN
--------------------
August 30, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Harry Schreiber appeals the denial of his motion filed pur-
suant to
    28 U.S.C. § 1651
    .   He was convicted of wire fraud, bank-
ruptcy fraud, and conspiracy to commit wire fraud and bankruptcy
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-50213
-2-
fraud in violation of
    18 U.S.C. §§ 371
    , 1343, and 152.              His motions
for a remand and for expedited consideration are DENIED.                  Because
he is appealing the denial of relief under § 1651, he does not re-
quire   a   certificate   of   appealability       (“COA”),   see
    28 U.S.C. § 2253
    (c)(1), so his motion for a COA is DENIED as unnecessary.
Schreiber   is   not   entitled   to   the    relief    he   seeks    under
§ 1651.     Jimenez v. Trominski,
    91 F.3d 767
    , 767-68 & n.1 (5th Cir.
1996); Theriault v. Mississippi,
    390 F.2d 657
    , 657 (5th Cir. 1968).
“The writ of coram nobis is an extraordinary remedy available to a
petitioner no longer in custody who seeks to vacate a criminal con-
viction in circumstances where the petitioner can demonstrate civil
disabilities as a consequence of the conviction, and that the chal-
lenged error is of sufficient magnitude to justify the extraordi-
nary relief.”      Jimenez,
    91 F.3d at 768
    .           “The writ of audita
querela . . . permits a petitioner to obtain relief against a
judgment based on some legal defense arising after the judgment.”
    Id.
       Schreiber, however, remains in federal custody and is not re-
lying on a legal defense that arose after the judgment.
    Id.
    The appeal is without merit and is DISMISSED as frivolous.
See Howard v. King,
    707 F.2d 215
    , 219-20 (5th Cir. 1983); 5TH CIR.
R. 42.2.
APPEAL DISMISSED AS FRIVOLOUS; MOTION FOR COA DENIED AS
UNNECESSARY; OTHER MOTIONS DENIED.