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129 F3d 128 United States v. Cozzetti

129 F.3d 128

UNITED STATES of America, Plaintiff-Appellee,
v.
Anthony COZZETTI, Defendant-Appellant.

No. 95-16868.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 20, 1997.**
Filed Oct. 23, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Appeal from the United States District Court for the District of Nevada Lloyd D. George, Chief Judge, Presiding

Before THOMPSON, T.G. NELSON, and KLEINFELD, Circuit Judges.

1

MEMORANDUM*

2

Former federal prisoner Anthony Cozzetti appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to set aside his 1970 conviction for, among other things, transporting a woman in interstate commerce for the purpose of prostitution in violation of 18 U.S.C. § 2421. The district court denied Cozzetti's motion because he was not in federal custody at the time he filed his § 2255 motion. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

3

Cozzetti contends that the district court erred by failing to construe his § 2255 motion as a petition for writ of error coram nobis.1 We affirm the district court's order, see First Pac. Bank v. Gilleran, 40 F.3d 1023, 1024 (9th Cir.1994) (stating that court of appeals may affirm a district court on any ground supported by the record), because we conclude that Cozzetti has failed to demonstrate fundamental error requiring a reversal of his conviction, cf. United States v. McClelland, 941 F.2d 999, 1002-03 (9th Cir.1991) (holding that petitioner was entitled to writ of coram nobis because retroactive application of caselaw vitiated his criminal conviction).

4

AFFIRMED.

**

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Cozzetti's pending motions are denied

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

Because Cozzetti provides no argument in his opening brief to support his contention that the district court erred by not allowing him to file a reply to the government's response to his § 2255 motion, we conclude that he has abandoned this issue. See United States v. Vought, 69 F.3d 1498, 1501 (9th Cir.1995)