Case: 08-50419 Document: 00511075353 Page: 1 Date Filed: 04/09/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 9, 2010
No. 08-50419
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LAWRENCE W FEW,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:01-CR-1195-2
No. 3:06-CV-68
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Lawrence Few has filed a motion for a certificate of appealability (COA)
to appeal the district court’s denial of his petition for a writ of coram nobis in
which he challenges the validity of his conviction for making a false material
statement to a federal agent. Few was sentenced to two years of probation, with
90 days of home confinement, a fine of $2000, and a special assessment of $100.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 08-50419 Document: 00511075353 Page: 2 Date Filed: 04/09/2010
No. 08-50419
Although Few originally characterized his pleading as a 28 U.S.C. § 2255
motion, he acknowledges that he is not entitled to challenge his conviction under
that provision because he was not in federal custody when he filed his pleading.
See 28 U.S.C. § 2255(a). He has therefore waived that claim and is not required
to obtain a COA for it. There is no requirement to obtain a COA in order to
appeal the denial of a petition for a writ of coram nobis. United States v. Kwan,
407 F.3d 1005, 1009 (9th Cir. 2005); Rodriguez v. Johnson, No. 00-50225, 2000
WL 1901607, *1 (5th Cir. 2000) (unpublished); United States v. Baptiste, 223
F.3d 188, 189 n.1 (3d Cir. 2000).
Treating Few’s filing as an appeal of the district court’s denial of his
petition for a writ of coram nobis, we hold that the district court did not abuse
its discretion in denying the writ. We have previously determined on direct
appeal that there was sufficient evidence to support the jury’s finding that Few
made a false representation to the agent. See United States v. Few, No. 02-
50832, 2003 WL 1202811 (5th Cir. 2003) (unpublished); 18 U.S.C. § 1001. Few
has failed to overcome the presumption that the underlying criminal proceedings
were correct, and he has not shown a fundamental error that resulted in a
complete miscarriage of justice. See United States v. Dyer, 136 F.3d 417, 422
(5th Cir. 1998); Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir. 1996).
AFFIRMED.
2