Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). Accordingly, Dibble's request for oral argument is denied.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
State prisoner petitioned for writ of error coram nobis, challenging his prior federal conviction for attempted bank robbery based on ineffective assistance of counsel. The United States District Court for the District of Alaska, James K. Singleton, Chief Judge, denied petition. Prisoner appealed. The Court of Appeals held that appeal was untimely.
Appeal dismissed.
Page 828.
Appeal from the United States District Court for the District of Alaska James K. Singleton, Chief Judge, Presiding.
Before KLEINFELD, McKEOWN, and FISHER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
California state prisoner Barry Dibble appeals pro se from the district court's denial of his petition for writ of error coram nobis challenging his 1976 federal conviction for attempted bank robbery based on ineffective assistance of trial counsel. We have jurisdiction pursuant to 28 U.S.C. § 1291, and dismiss as untimely.
Dibble originally filed a 28 U.S.C. § 2255 petition. As Dibble conceded, however, because he is no longer in custody on the challenged conviction, relief under section 2255 is not an available remedy. See Yasui v. United States, 772 F.2d 1496, 1498 (9th Cir.1985). Accordingly, this appeal is from the petition construed in the district court as a writ of coram nobis under the all writs act.
On December 12, 2000, the district court entered its order denying Dibble's petition. Dibble did not file his notice of appeal until almost sixty days later on February 9, 2000. Because Dibble did not comply with Fed. R.App. P. 4(b) and because he cannot be saved by any discretionary extension of time under Rule (4)(b)(4), we dismiss the appeal as untimely. Yasui v. United States, 772 F.2d 1496, 1498-99 (9th Cir.1985) (concluding that the writ of error coram nobis is a step in the criminal process and therefore appeal must be taken within 10 days).
Dibble's motion for judgment of default is denied.
DISMISSED.