United States of America v.  Eric Lee Jensen

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-6871 
ERIC LEE JENSEN,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Orangeburg.
Cameron M. Currie, District Judge.
(CR-98-1118)
Submitted: August 18, 2003
Decided: September 26, 2003
Before LUTTIG, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Eric Lee Jensen, Appellant Pro Se. Stacey Denise Haynes, OFFICE
OF THE UNITED STATES ATTORNEY, Columbia, South Caro-
lina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION
PER CURIAM:
Eric Lee Jensen appeals from the district court’s order denying his
"Emergency Petition" in which he challenged the validity of his
indictment under Rules 6(f) and 7(c) of the Federal Rules of Criminal
Procedure. Jensen pled guilty to one count of the indictment, and his
conviction became final in February 2000. He subsequently requested
and received a copy of his indictment. That copy, unlike the official
copy in the record, did not contain signatures of the foreperson of the
grand jury or of the prosecutor, as required under Rule 7(c).
Based on the absence of the required signatures on his copy of the
indictment, Jensen speculated that the indictment was not presented
in open court as required under Rule 6(f), and therefore, the indict-
ment was not valid and the district court had no subject matter juris-
diction over his criminal proceeding. See Renigar v. United States,
172 F. 646, 650 (4th Cir. 1909) (holding that a valid indictment must
be returned in open court and failure to do so is a jurisdictional
claim).
We find that there is no proper procedural vehicle by which Jensen
can raise his challenges to the indictment at this stage of the proceed-
ings. If the "Emergency Petition" were addressed under 28 U.S.C.
§ 2255 (2000), based on Jensen’s submissions, it is clear from the
record that the motion was filed beyond the limitations period. A peti-
tion under 28 U.S.C. § 2241 (2000) is not an available remedy
because Jensen cannot show that the relief under § 2255 is inadequate
or ineffective. In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997); see
Swain v. Pressley, 430 U.S. 372, 381 (1977). The only other proce-
dural vehicle by which Jensen’s claims might be raised—a writ of
error coram nobis—also is not an available remedy in this case. See
United States v. Sawyer, 239 F.3d 31, 37 (1st Cir. 2001) (holding that
a writ of coram nobis applies only when the applicant is not in cus-
tody); United States v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001)
(same); United States v. Noske, 235 F.3d 405, 406 (8th Cir. 2000)
(same). But see United States v. Dawes, 895 F.2d 1581, 1582 (10th
Cir. 1990) (allowing coram nobis for a person in custody when
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§ 2255 was not a sufficient remedy). Thus, we conclude that the dis-
trict court was unable to address the merits of the claims.
Moreover, Jensen’s claims are merely speculative. In fact, his
claim that the indictment did not contain the necessary signatures is
belied by the record, and his challenge to the presentment of the
indictment is based solely on his erroneous claim that the original
indictment was not signed. Thus, Jensen is entitled to no relief.
Accordingly, we affirm the district court’s order denying Jensen’s
"Emergency Petition."
Also on appeal, Jensen contends that the district court erred in
denying him release on bond in November 1998. This issue was
waived by Jensen’s failure to raise it in the district court. See United
States v. One 1971 Mercedes Benz, 542 F.2d 912, 915 (4th Cir. 1976).
In conclusion, we affirm the district court’s order denying Jensen’s
"Emergency Petition." We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
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