                             UNPUBLISHED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Dismissed in part, affirmed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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

                                             2
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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