Kenneth Rowe v. United States ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH CHARLES ROWE, No. 19-35834
Petitioner-Appellant, D.C. No. 4:19-cv-00064-BMM
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted May 18, 2021**
Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.
Federal prisoner Kenneth Rowe appeals from the district court’s judgment
dismissing his petition for a writ of error coram nobis. We have jurisdiction under
28 U.S.C. § 1291. We review de novo, Matus-Leva v. United States, 287 F.3d 758,
760 (9th Cir. 2002), and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
To obtain coram nobis relief, a petitioner must meet four requirements, one
of which is to demonstrate that a more usual remedy is not available. See id. The
district court determined that Rowe did not satisfy this requirement because he is in
custody serving his term of imprisonment, and can therefore file a 28 U.S.C.
§ 2255 motion. Rowe does not challenge this conclusion and instead argues that
his conviction is void. We do not address Rowe’s contention because we agree
with the district court that Rowe cannot show that the more usual remedy of a
§ 2255 motion is unavailable to attack his conviction. See Matus-Leva, 287 F.3d at
760 (a petitioner in custody cannot resort to coram nobis even if a § 2255 motion
would be time-barred).
Rowe’s “Motion for Relief” is denied.
AFFIRMED.
2 19-35834