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  • United States v. Theodore Howze, JR., 4th Cir. (2013)

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    Theodore Howze Jr. appealed the district court's denial of his petition for a writ of error coram nobis. The writ is an extraordinary remedy traditionally used to attack convictions with continuing consequences when the petitioner is no longer in custody. However, a petitioner cannot resort to the writ simply because he cannot meet standards for a second §2255 motion. Here, Howze sought through coram nobis to benefit from a recent appellate decision, but had previously filed unsuccessful §2255 motions on this issue. The appellate court affirmed the district court's denial, concluding coram nobis was unavailable to Howze as he was seeking to evade limitations on second §2255 motions.

    Original Description:

    Filed: 2013-05-10 Precedential Status: Non-Precedential Docket: 13-6467

    Original Title

    United States v. Theodore Howze, Jr., 4th Cir. (2013)

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    Theodore Howze Jr. appealed the district court's denial of his petition for a writ of error coram nobis. The writ is an extraordinary remedy traditionally used to attack convictions with continuing consequences when the petitioner is no longer in custody. However, a petitioner cannot resort to the writ simply because he cannot meet standards for a second §2255 motion. Here, Howze sought through coram nobis to benefit from a recent appellate decision, but had previously filed unsuccessful §2255 motions on this issue. The appellate court affirmed the district court's denial, concluding coram nobis was unavailable to Howze as he was seeking to evade limitations on second §2255 motions.

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    13 views3 pages

    United States v. Theodore Howze, JR., 4th Cir. (2013)

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    Scribd Government Docs
    Theodore Howze Jr. appealed the district court's denial of his petition for a writ of error coram nobis. The writ is an extraordinary remedy traditionally used to attack convictions with continuing consequences when the petitioner is no longer in custody. However, a petitioner cannot resort to the writ simply because he cannot meet standards for a second §2255 motion. Here, Howze sought through coram nobis to benefit from a recent appellate decision, but had previously filed unsuccessful §2255 motions on this issue. The appellate court affirmed the district court's denial, concluding coram nobis was unavailable to Howze as he was seeking to evade limitations on second §2255 motions.

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    of 3

    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 courts 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 Howzes 28 U.S.C.

    2244

    in

    (2006)

    motion,

    which

    he

    sought

    leave

    successive 2255 motion raising the Simmons issue.

    to

    file

    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

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