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The Honorable Susan Webber Wright, United States District Judge for the

Eastern District of Arkansas, adopting the report and recommendations of the

Honorable J. Thomas Ray, United States Magistrate Judge for the Eastern District of

Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-2076

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Bart Ellis Shoupe, *

* [UNPUBLISHED]

Appellant. *

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Submitted: November 7,2008

Filed: November 17, 2008

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Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.

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PER CURIAM.

Bart Ellis Shoupe appeals the district court’s1

 denial of his petition for a writ of

error coram nobis. Shoupe sought to challenge a 1991 federal conviction for which

he has served the sentence, because that conviction was used to enhance his sentence

for another conviction in 2003.
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We conclude that the district court did not err in denying coram nobis relief.

See United States v. Comacho-Bordes, 94 F.3d 1168, 1173 (8th Cir. 1996) (standard

of review; coram nobis relief is granted only where necessary to achieve justice and

to correct fundamental errors). We agree with the district court that Shoupe’s claims

are barred by the abuse-of-the-writ doctrine, as he could have raised them at the

appropriate time on direct appeal or in a motion under 28 U.S.C. § 2255 before

completion of his supervised release. See id. at 1172-73 (abuse-of-the-writ principles

apply to coram nobis relief); Azzone v. United States, 341 F.2d 417, 419 (8th Cir.

1965 (per curiam) (coram nobis may not be used as substitute for appeal); cf.

McCleskey v. Zant, 499 U.S. 467, 489 (1991) (petitioner cannot raise claim in

subsequent petition that he could have raised earlier). Shoupe’s assertion that his pro

se status prevented him from discovering earlier the investigation report on which he

based his claims does not constitute excusable neglect for failing to raise the claims,

especially given that Shoupe was present at the suppression hearing where the report

was, in fact, used. See McCleskey, 499 U.S. at 490, 493 (petitioner must show

legitimate excuse for failing to raise claim at appropriate time); United States v.

Kwan, 407 F.3d 1005, 1011 (9th Cir. 2005) (to qualify for coram nobis relief,

petitioner must have valid reason for not attacking conviction earlier); cf. Smittie v.

Lockhart, 843 F.2d 295, 298 (8th Cir. 1988) (petitioner’s pro se status and limited

educational background are not sufficient cause for failing to pursue state-court

remedies).

Further, the magistrate judge did not abuse his discretion in denying some of

Shoupe’s discovery requests or in declining to review the file in camera before ruling.

See Executive Air Taxi Corp. v. City of Bismarck, 518 F.3d 562, 569 (8th Cir. 2008)

(standard of review for discovery ruling); United States v. Price, 542 F.3d 617, 621-22

(8th Cir. 2008) (standard of review for district court’s refusal to conduct in camera

review). Last, we find no abuse of discretion in the denial of either Shoupe’s request

for counsel, see Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998) (standard of

review; relevant factors); Steele v. United States, 518 F.3d 986, 988 (8th Cir. 2008)
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(constitutional right to counsel extends to first appeal of right and no further), or his

motion to reconsider, see Arnold v. Wood, 238 F.3d 992, 998 (8th Cir. 2001)

(standard of review).

The judgment is affirmed.

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