                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 05 2010

                                                                         MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 THOMAS JAMES O’NEILL,                           No. 07-35280

               Petitioner - Appellant,           D.C. No. CV-04-00012-DWM

   v.
                                                 MEMORANDUM *
 UNITED STATES OF AMERICA,

               Respondent - Appellee.



                     Appeal from the United States District Court
                             for the District of Montana
                     Donald W. Molloy, District Judge, Presiding

                            Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Thomas James O’Neill appeals pro se from the district court’s order denying

his pro se motion entitled “Federal Question Pursuant to 28 U.S.C. § 1331.” We

have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

EG/Research
       The district court properly declined to construe O’Neill’s pro se motion as a

Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, and

properly denied the motion. See United States v. Thiele, 314 F.3d 399, 401 (9th

Cir. 2002) (holding that § 2255 cannot be used to challenge the validity of a

restitution order).

       Even assuming that O’Neill’s challenge to his restitution order could be

construed as a petition under 28 U.S.C. § 2241 or a petition for a writ of error

coram nobis, O’Neill waived any objection to the validity of restitution order by

failing to raise the issue on direct appeal. See United States v. Gianelli, 543 F.3d

1178, 1184 (9th Cir. 2008).

       O’Neill contends in his reply brief that the district court’s denial of his

motion was improper because he sought only an answer to his federal question,

rather than relief from the restitution order. However, federal courts are prohibited

from rendering advisory opinions in the absence of a justiciable controversy. See

Benton v. Maryland, 395 U.S. 784, 788 (1969).

       All pending motions are denied as moot.

       AFFIRMED.




EG/Research                                 2                                        07-35280
