US v. Theodore Howze, Jr., No. 13-6467 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6467 UNITED STATES OF AMERICA, Plaintiff Appellee, v. THEODORE HOWZE, JR., Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Senior District Judge. (3:98-cr-00299-GCM-1) Submitted: May 7, 2013 Before KING and Circuit Judge. SHEDD, Decided: Circuit Judges, and May 10, 2013 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Theodore Howze, Jr., Appellant Pro Se. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Theodore Howze, Jr., a federal prisoner, appeals the district court s order denying his petition for writ of error coram nobis. Finding no error, we affirm. Coram traditionally continuing nobis been is used consequences an extraordinary to attack when the remedy [federal] petitioner that convictions is custody for purposes of 28 U.S.C. § 2255. no has with longer in United States v. Rhines, 640 F.3d 69, 71 (3d Cir. 2011) (internal quotation marks omitted). A petitioner may not resort to a writ of error coram nobis simply because he cannot meet the standards for filing a second or successive § 2255 motion. Id. at 72. Here, Howze sought, by way of coram nobis, to benefit from our decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). We previously denied Howze s 28 U.S.C. § 2244 in (2006) motion, which he sought leave successive § 2255 motion raising the Simmons issue. to file a Howze also has sought relief under Simmons by way of a § 2255 motion, which the district court denied. We conclude that the district court did not abuse its discretion in denying relief. Not only is Howze incarcerated, but coram nobis is unavailable to a petitioner, such as Howze, who seeks through the writ to evade the limitation on second or successive § 2255 motions. 2 We therefore affirm. 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. AFFIRMED 3
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