                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________           FILED
                                                   U.S. COURT OF APPEALS
                                No. 09-14079         ELEVENTH CIRCUIT
                                                         MAY 25, 2010
                            Non-Argument Calendar
                                                          JOHN LEY
                          ________________________
                                                            CLERK

                   D. C. Docket No. 92-00213-CR-T-15-TGW

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                      versus

JOSE AVILES,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                                  (May 25, 2010)

Before EDMONDSON, BIRCH and CARNES, Circuit Judges.

PER CURIAM:

      Jose Aviles, a federal prisoner proceeding pro se, was convicted in 1992 of

conspiracy to possess with intent to distribute more than five kilograms of cocaine,
in violation of 21 U.S.C. § 846. Because Aviles had two prior state felony drug

convictions, he received a mandatory life sentence under 21 U.S.C. §§

841(b)(1)(A) and 851. Aviles appeals the district court’s denial of his petition for

a writ of error coram nobis and his motion for appointment of counsel, as well as

the court’s order denying Aviles’s motion for reconsideration of those issues.

       Aviles contends that the district court improperly enhanced his sentence based

on a 1974 state conviction which he says was expunged. Aviles, who is not fluent in

English, also contends that his federal sentencing proceeding was unconstitutional

because he did not have access to a Spanish interpreter.1 We review the denial of

coram nobis relief only for an abuse of discretion. United States v. Peter, 310 F.3d

709, 711 (11th Cir. 2002) (quotation omitted). We also review an order on a motion

for reconsideration only for an abuse of discretion. See Farris v. United States, 333

F.3d 1211, 1216 (11th Cir. 2003).

       In criminal matters, federal courts have the authority to issue a writ of error

coram nobis under the All Writs Act, 28 U.S.C. § 1651(a). United States v. Mills,

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         Aviles also makes several other arguments for the first time on appeal: (1) he was
denied effective assistance of counsel at the time of his arrest; (2) his Fifth and Sixth Amendment
rights were violated when prosecutors withheld critical information; (3) he was denied the
opportunity to cross-examine government witnesses and present a viable defense; and (4) he was
unconstitutionally entrapped by the government. This Court generally will not consider issues
raised for the first time on appeal, and Aviles has not shown that failure to make an exception in
his case would result in a miscarriage of justice. See Sanders v. United States, 740 F.2d 886, 888
(11th Cir. 1984).

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221 F.3d 1201, 1203 (11th Cir. 2000). “The bar for coram nobis relief is high,” and

the writ may issue only when (1) “there is and was no other available avenue of

relief” and (2) “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.” Alikhani v. United States, 200 F.3d 732, 734 (11th Cir.

2000) (quotations omitted). Coram nobis relief is unavailable to a person who is in

custody, because he has access to the statutory remedies of 28 U.S.C. § 2255. United

States v. Brown, 117 F.3d 471, 475 (11th Cir. 1997). Because Aviles remains in

custody, the district court did not abuse its discretion in denying his petition.

Moreover, the district court properly refused to construe his coram nobis petition as

a motion for relief under § 2255, because Aviles previously filed an unsuccessful

§ 2255 motion and he has not sought leave under 28 U.S.C. § 2244(b)(3)(A) to file

a second or successive motion. See United States v. Garcia, 181 F.3d 1274, 1274–75

(11th Cir. 1999).

      Aviles also argues that the district court abused its discretion in denying his

motion for appointment of counsel in connection with his coram nobis petition.

A district court’s decision not to appoint counsel in a postconviction collateral

proceeding is reviewed for abuse of discretion. See United States v. Webb, 565

F.3d 789, 793 (11th Cir. 2009). We have “consistently held that there is no federal

                                          3
constitutional right to counsel in postconviction proceedings.” Barbour v. Haley,

471 F.3d 1222, 1227 (11th Cir. 2006). “Counsel must be appointed for an

indigent federal habeas petitioner only when the interests of justice or due process

so require.” Schultz v. Wainwright, 701 F.2d 900, 901 (11th Cir. 1983). When a

postconviction petition lacks merit, the district court may properly decide not to

appoint counsel. See id. Because Aviles had no entitlement to counsel and has

not shown that the interests of justice or due process required the appointment of

counsel, we conclude that the district court did not abuse its discretion in denying

Aviles’s request.

      AFFIRMED.




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