[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ MARCH 12, 2008
THOMAS K. KAHN
No. 06-14402 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 92-06138-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OLANDO KEITH CHAFF,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 12, 2008)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Olando Keith Chaff, a federal prisoner proceeding pro se, appeals the district
court’s order denying his petition for a writ of error coram nobis, which was brought
pursuant to 28 U.S.C. § 1615(a). On appeal, Chaff challenges the sufficiency of the
indictment underlying his criminal conviction and the sufficiency of the factual basis
as to his guilty plea, and argues that these are jurisdictional errors of a fundamental
character. He also contends that the doctrine of procedural default should not bar his
petition. The district court denied Chaff’s petition because it found that he was still
in custody and, in the alternative, because he should have raised his claims in his
previous 28 U.S.C. § 2255 motion.
We review the denial of coram nobis relief for abuse of discretion. Alikhani
v. United States, 200 F.3d 732, 734 (11th Cir. 2000). A writ of error coram nobis is
only appropriate when other relief is unavailable. Id. Coram nobis relief is therefore
“limited to cases in which no statutory remedy is available or adequate.” United
States v. Brown, 117 F.3d 471, 474-75 (internal quotations omitted). Issuance of the
writ is only proper when “the error involves a matter of fact of the most fundamental
character which has not been put in issue or passed upon and which renders the
proceeding itself irregular and invalid.” Moody v. United States, 874 F.2d 1575,
1576-77 (11th Cir. 1989).
Because federal prisoners may make use of the statutory remedy of 28 U.S.C.
§ 2255, coram nobis relief is unavailable to them. United States v. Garcia, 181 F.3d
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1274, 1274 (11th Cir. 1999) (“Coram nobis relief is unavailable to a person, such as
the appellant, who is still in custody.”). This Court has construed a petition for the
writ of error coram nobis as a § 2255 petition when the petitioner was still in custody.
Brown, 117 F.3d at 475. However, we have refused to construe an application for
coram nobis relief as a § 2255 motion when the appellant has already filed one § 2255
motion and has not sought leave to file a successive motion. Garcia, 181 F.3d at
1275.
In this case, Chaff has already filed a § 2255 motion and has not obtained leave
to file a successive motion. Chaff was in custody when he filed his motion and
remains in custody today. Therefore, he is not entitled to coram nobis relief.
Additionally, under Garcia, the district court could not construe his petition as a §
2255 motion because he did not obtain permission from this Court to file a successive
motion. Chaff’s argument that the “in custody” bar may be overcome by alleging a
jurisdictional error is without merit. We therefore do not discuss the district court’s
alternative holding, nor do we address whether Chaff alleged jurisdictional errors of
a fundamental character. Accordingly, the judgment of the district court is
AFFIRMED.
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