                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           August 9, 2006
                                       TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                            Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                                  No. 05-5217
                                                     (D. Ct. No. 88-CR-137-HDC)
 ERNEST EADS,                                                 (N.D. Okla.)

               Defendant - Appellant.



                              ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit Judges.


      After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

      Defendant-Appellant Ernest Eads, appearing pro se, appeals the District Court’s

denial of his petition for a writ of coram nobis. We have jurisdiction under 28 U.S.C.

§ 1291, and because Mr. Eads fails to explain the sixteen-year gap between his conviction




      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
and his petition, we AFFIRM.

                                    I. BACKGROUND

       In December 1988, Mr. Eads was charged in a two-count information in the

Northern District of Oklahoma for controlled substance offenses. The following month,

in January 1989, he pleaded guilty to Count One (a felony) and the Government

dismissed Count Two. He completed an 18-month sentence without appealing either his

sentence or his conviction. Around the same time as this conviction, Mr. Eads was

separately convicted of another felony controlled substance offense.

       Mr. Eads’ troubles did not end there, however, because in 1997 he was convicted

in the Western District of Missouri of yet another felony controlled substance offense.

Due to his two prior felonies, the Western District of Missouri classified him as a career

felon and sentenced him to life imprisonment. See 21 U.S.C. § 851; United States

Sentencing Guidelines Manual § 4B1.1. In 1998, the United States Court of Appeals for

the Eighth Circuit affirmed both the conviction and sentence. United States v. Eads, 144

F.3d 1151 (8th Cir. 1998).

       In 2005, Mr. Eads filed a petition for a writ of coram nobis in the Northern District

of Oklahoma arguing that that court failed to inform him in 1989 of his right to an appeal

and his right to appellate counsel. The District Court declined to issue the writ, in part

due to the belated nature of the petition. Mr. Eads now appeals.

                                     II. DISCUSSION

       The writ of coram nobis is available to federal courts in criminal cases under the

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All Writs Act, 28 U.S.C. § 1651. See United States v. Morgan, 346 U.S. 502 (1954);

Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). “It is used to attack allegedly

invalid convictions which have continuing consequences, when the petitioner has served

his sentence and is no longer ‘in custody’ for purposes of 28 U.S.C. § 2255.” United

States v. Stoneman, 870 F.2d 102, 105 (3d Cir. 1989). The writ is an extraordinary one,

however, because it extends litigation beyond the final judgment and the exhaustion of

other remedies. Klein, 880 F.2d at 253. Accordingly, the writ may be used only to

“correct errors that result in a complete miscarriage of justice.” United States v.

Williamson, 806 F.2d 216, 222 (10th Cir. 1986). For this reason, the petitioner must

exercise due diligence in seeking the writ, and he carries the burden to make such a

demonstration. Klein, 880 F.2d at 253–54.

       As the District Court noted, Mr. Eads has failed to show why he has made no

attempt to raise the substance of his coram nobis petition at any time for the past sixteen-

plus years since his conviction in 1989. Rather, Mr. Eads simply contends that his case

warrants special consideration notwithstanding his delay. Such an assertion does not

satisfy Mr. Eads’ burden to demonstrate due diligence, and for this reason we affirm the

dismissal of his petition.

                                           ENTERED FOR THE COURT,



                                           Deanell Reece Tacha
                                           Chief Circuit Judge



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