UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6137
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HERMAN LEE TATE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:08-cr-00125-RLV-9; 5:12-cv-00129-
RLV)
Submitted: May 23, 2013 Decided: May 29, 2013
Before MOTZ and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part, affirmed in part by unpublished per curiam
opinion.
Herman Lee Tate, Appellant Pro Se. Kimlani M. Ford, Assistant
United States Attorney Charlotte, North Carolina; Amy Elizabeth
Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Herman Lee Tate seeks to appeal the district court’s
order denying relief on his unauthorized, successive 28 U.S.C.A.
§ 2255 (West Supp. 2012) motion. The order is not appealable
unless a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(B) (2006). A certificate
of appealability will not issue absent “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)
(2006). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that the district court’s
assessment of the constitutional claims is debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003). When the district court
denies relief on procedural grounds, the prisoner must
demonstrate both that the dispositive procedural ruling is
debatable, and that the motion states a debatable claim of the
denial of a constitutional right. Slack, 529 U.S. at 484-85.
We have independently reviewed the record and conclude that Tate
has not made the requisite showing.
Tate alternatively asked the district court to grant
him relief via a writ of error coram nobis. Such a writ may be
used to vacate a conviction where there is a fundamental error
resulting in conviction, and no other means of relief is
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available. United States v. Akinsade, 686 F.3d 248, 252 (4th
Cir. 2012). The remedy is limited, however, to those
petitioners who are no longer in custody pursuant to their
convictions. Carlisle v. United States, 517 U.S. 416, 428-29
(1996); Akinsade, 686 F.3d at 252. Therefore, because Tate is
still in custody, he cannot obtain relief pursuant to a writ of
coram nobis. To the extent Tate appeals the district court’s
denial of coram nobis relief, we affirm this disposition.
Accordingly, we deny a certificate of appealability,
dismiss the appeal in part, and affirm in part. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
DISMISSED IN PART,
AFFIRMED IN PART
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