### The HONORABLE HENRY WOODS, United States District Judge for 1 

### the Eastern District of Arkansas. ___________ No. 95-2999

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Ervin Kindle, * * [PUBLISHED] Appellant. *

___________ Submitted: June 6, 1996 Filed: June 26, 1996

___________ Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ PER CURIAM.

Federa l inmate Ervin Kindle appeals the district court's orde r 1 denying his petition for a writ of error coram nobis. We affirm.

Kindle w as convicted of one count of drug conspiracy, in violatio n of 21 U. S.C. § 846; three counts of possession of drugs with intent t o distribute, in violat ion of 21 U.S.C. § 841; and two counts of aiding and abetting in the distribution of drugs or in the possession of drugs with intent to distribute, in violation of 18 U.S.C. § 2. The district court sentenced Kindle to 264 months in prison, five years of supervised release , a $5, 000 fine and a $300 special assessment; we affirmed Kindle' s conviction on all counts. United States v. Kindle , 925 F.2d 272, 274-76 (8th Cir.

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1991). We subsequently affirmed the denial of Kindle's 28 U.S.C. § 2255 motion, in which he c laimed ineffective assistance of counsel. Kindle v. Unit ed States , No. 94-2631 (8th Cir. Jan. 23, 1995) (unpublished pe r curiam).

Kindle then filed this writ of error coram nobis, asserting that the district court violated Fed. R. Crim. P. 32(c) by failing to conduct a n evidentiary hearing to resolve disputed factual allegations in th e presentence investigation report (PSR), after Kindle had objected to the PSR before and during sentencing. The district court denied Kindle coram nobis relief, conclud ing that the time for challenging failure to conduct an evidentiary hearing is at sentencing and on d irect appeal. This appeal followed.

Kindle is not entitled to the relief he seeks because he is still in federal custody. See Zabel v. United States Attorney , 829 F.2d 15, 17 (8t h Cir. 1987) (per curia m) (coram nobis lies only where petitioner completed sentence a nd is no longer in federal custody, is serving sentence fo r subseq uent state conviction, or has not begun serving federal sentenc e under attack).

We reject Kindle's invitation to construe his petition as a successive motion for § 2255 relief. Had Kindle elected to proceed under § 2255, he would have had to justify his apparent abuse of the writ. See McClesky v. Zant , 499 U.S. 467, 493-94 (1991) (successive federal habeas petit ion must be dismissed as abuse of writ unless petitioner can sho w cause and prejudice o r fundamental miscarriage of justice). And he would have ha d to justify his failure to raise the Rule 32(c) issue on direc t appeal. See Ramey v. United States , 8 F.3d 1313, 1314 (8th Cir. 1993 ) (§ 225 5 claim challenging drug quantity attributed to petitioner fo r sentencing was procedurally defaulted because no t raised on direct appeal; § 22 55 relief not available absent showing of cause and prejudice o r factual innocence). Kindle's coram nobis petition did not allege cause an d prejudice or factual innocence. Indeed, it did

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not even acknowledge his prior § 2255 motion. It therefore may not b e construed as a successive § 2255 motion.
The judgment of the district court is affirmed.
MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

Because we are bound to construe a pro se petition liberally, I would consider petitioner's papers as asking for relief under 28 U.S.C. § 2255 and would remand the case to the district court for a decision on the issu e of whether the writ has been abused.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.