CLD-011 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 10-2731 ___________

UNITED STATES OF AMERICA

v.

CORNELIUS ALEXANDER ALBERT, a/k/a Connie

Cornelius Alexander Albert, Appellant ____________________________________

Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 97-cr-00404-01) District Judge: Honorable Lowell A. Reed, Jr. ____________________________________

Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 October 15, 2010

Before: RENDELL, FUENTES and SMITH, Circuit Judges

Opinion filed: October 25, 2010 _________

OPINION OF THE COURT _________

PER CURIAM

In 1998, Cornelius Alexander Albert was convicted of use of counterfeit access

devices and conspiracy to commit credit card fraud. He was sentenced to serve a 162- USA v. Albert 10-2731 Page 2

month term of imprisonment and three years of supervised release, and he was ordered to

pay $3,091,250.70 in restitution. While he was in prison (until November 2009), he paid

restitution through quarterly withdrawals from his institutional commissary account;

during his current supervised release, he pays $200.00 per month directly to the United

States District Court for the Eastern District of Pennsylvania.

Albert filed a petition for a writ of error coram nobis in which he challenged the

restitution order. He argued that the District Court improperly calculated the amount of

loss in his case for restitution purposes and erroneously held him responsible for losses

that preceded the “temporal period in the offense of conviction.”

The District Court denied the petition. The District Court held that Albert

presented no basis for coram nobis relief because he was still in custody for purposes of

. Construing the petition as a § 2255 motion, the District Court held that

it could not rule on it because it was an unauthorized second or successive motion.

Assuming that the § 2255 motion was properly before it, the District Court concluded

that the claim presented was not cognizable under § 2255. The District Court also

rejected Albert’s argument that he should be permitted to proceed by coram nobis

because otherwise he would be without a remedy. The District Court explained that USA v. Albert 10-2731 Page 3

Albert did not meet the requirements for a writ of coram nobis.

Albert appeals. Our review of legal issues on appeal from a decision denying

coram nobis relief is de novo; factual findings we review for clear error. See, e.g., United

States v. Johnson,

(6th Cir. 2001). Upon review, we will affirm the

District Court’s decision because no substantial issue is presented on appeal. See L.A.R.

27.4; I.O.P. 10.6.

The power to grant a writ of coram nobis in criminal matters comes from the All

Writs Act,

(a). See United States v. Stoneman,

(3d

Cir. 1989) (citing United States v. Morgan,

(1954)). Traditionally, coram

nobis is used in attacking convictions with continuing consequences when the petitioner

is no longer in “custody” for purposes of § 2255. See United States v. Baptiste,

(3d Cir. 2000). Usually, custody, which includes supervised release for the

purposes of §2255, see United States v. Essig,

, 970 n.3 (3d Cir. 1993),

precludes the possibility of coram nobis relief, see Baptiste,

. Where

there is custody there is ordinarily a remedy under § 2255. And common law writs

survive only to fill the gaps in the current statutory scheme. See United States v. Valdez-

Pacheco,

(9th Cir. 2001). When an alternative remedy is USA v. Albert 10-2731 Page 4

available, a writ of coram nobis may not issue. See United States v. Denedo,

(2009).

In Albert’s case, as we have explained to him previously, the challenge to the

restitution order is not cognizable in § 2255 proceedings. See United States v. Albert,

C.A. No. 02-3886 (order entered on June 19, 2003) (citing United States v. Thiele,

). Other courts have considered whether a remedy under coram nobis is

available in similar situations where a remedy under § 2255 is not. See Barnickel v.

United States,

(7th Cir. 1997) (noting that a petitioner in custody but

without recourse under § 2255 could use the writ of coram nobis to challenge a

restitution order); Kaminski v. United States,

(2d Cir. 2003) (Judge

Calabresi concluding, in a portion of the opinion not joined by the other panel members,

that the fact of custody does not preclude a challenge to the non-custodial elements of a

sentence through coram nobis (when that writ is otherwise available)). However,

whether or not coram nobis can be used to challenge a restitution order such as Albert’s,

a writ of coram nobis is not available in Albert’s case.

Coram nobis is an extraordinary remedy; a court’s jurisdiction to grant the writ is

bounded by a stringent standard set higher than the standard for relief on direct appeal or USA v. Albert 10-2731 Page 5

on habeas. See Stoneman,

. The writ is used “to correct errors for which

there was no remedy available at trial and where ‘sound reasons’ exist for failing to seek

relief earlier.”

The errors must be fundamental errors of fact that go to the

jurisdiction of the trial court and render the proceeding itself irregular and invalid.

In

this case, Albert cannot show a sound reason for failing to seek relief earlier. The facts

underlying his claim were available to him; his legal claims are based on precedents that

predated his sentencing. He acknowledges in his petition that he objected to the

restitution award at sentencing. For these reasons, Albert’s failure to seek relief on this

issue on direct appeal precludes the possibility of coram nobis relief. See United States

v. Osser,

(3d Cir. 1988).

In short, the District Court properly concluded that the writ of coram nobis was

not available to Albert. We will affirm the District Court’s decision to deny Albert’s

petition.