United States of America, Plaintiff-appellee, v. Robert L. Pettit, Defendant-appellant, 52 F.3d 339 (10th Cir. 1995)

ORDER AND JUDGMENT¹ 

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Robert L. Pettit is before us a third time. He was convicted in 1989 for possession of crack cocaine with intent to distribute and sentenced to 120 months' imprisonment. On appeal we affirmed his conviction but remanded the case for resentencing. United States v. Pettit, 903 F.2d 1336 (10th Cir.), cert. denied, 498 U.S. 873 (1990). The district court then imposed a sentence of 97 months' imprisonment, and we affirmed. United States v. Pettit, 938 F.2d 175 (10th Cir. 1991).

On January 23, 1994, Mr. Pettit filed a pleading entitled "A Petition For Extraordinary Writ in the Nature of Error Coram Nobis Pursuant to Title 28 U.S.C. Section 1651" alleging trial errors relating to cross-examination, and improper argument by the prosecutor. As the district court correctly observed, Coram Nobis is an improper avenue of relief for one who is still incarcerated--as Mr. Pettit is. See United States v. Folak, 865 F.2d 110, 113 (7th Cir. 1988). A petition for a writ of habeas corpus, 28 U.S.C. 2255, is the only procedure available to Mr. Pettit on this record. He is procedurally barred from raising the issues in question, United States v. Allen, 16 F.3d 377 (10th Cir. 1994), and has failed to establish any exception to that rule.

The judgment of the district court is AFFIRMED. The mandate shall issue forthwith.