(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-40428 & 94-41027
Summary Calendar
UNITED STATES OF AMERICA, Respondent-Appellee,
versus
JOHN HALL THOMAS, Petitioner-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(6:93-CV-419 (TY-86-46-CR) & 6:93-CV-419 (6:82-CR-46))
(February 23, 1995)
Before POLITZ, Chief Judge, and HIGGINBOTHAM and DeMOSS, Circuit
Judges.
PER CURIAM:*
John Hall Thomas argues that the district court erred by
denying his petition for the writ of coram nobis. The writ is an
extraordinary remedy, available to a petitioner who is no longer in
custody. See United States v. Morgan, 346 U.S. 502 (1954). For a
petitioner to obtain the extraordinary writ, he must demonstrate
(1) that he is suffering a civil disability as a consequence of his

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criminal conviction and (2) "'that the challenged error is of
sufficient magnitude to justify the extraordinary relief.'" United
States v. Castro, 26 F.3d 557, 559 (5th Cir. 1994) (quoting United
States v. Marcello, 876 F.2d 1147, 1154 (5th Cir. 1989)).
Thomas's challenge does not justify granting the writ.
We have affirmed without opinion a district court ruling that
"newly discovered evidence affords no entree to said writ." United
States v. Carter, 319 F. Supp. 702, 705 (M.D. Ga. 1969), aff'd, 437
F.2d 444 (5th Cir. 1971). The district court in that case relied
upon dicta from a 1914 Supreme Court opinion stating that "[i]n
cases of . . . newly discovered evidence . . . the remedy is by a
motion for a new trial," not by a petition for coram nobis. United
States v. Mayer, 235 U.S. 55, 69 (1914). See also Reid v. United
States, 149 F.2d 334 (5th Cir. 1945) (per curiam) (denying coram
nobis petition based upon new evidence because it was essentially
an untimely motion for a new trial); Buie v. United States, 84 F.2d
565 (5th Cir. 1936) (denying coram nobis petition construed as an
untimely motion for new trial on ground of newly discovered
evidence). Indeed, the Eleventh Circuit has read our precedents to
bar consideration of newly discovered evidence in a coram nobis
proceeding. See Moody v. United States, 874 F.2d 1575, 1577 (11th
Cir. 1989), cert. denied, 493 U.S. 1081 (1990).
While we have never explicitly stated that newly discovered
evidence cannot be grounds for coram nobis relief, other circuits
have held that it can. See, e.g., Klein v. United States, 880 F.2d
250, 253-54 (10th Cir. 1989); United States v. Scherer, 673 F.2d

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176, 178 (7th Cir.), cert. denied, 457 U.S. 1120 (1982). Those
circuits have held that a coram nobis petition based on newly
discovered evidence may succeed if it demonstrates that the
evidence could not, in due diligence, have been revealed before
trial and that the evidence likely would have produced a different
result at trial.
We do not pursue the issue further because Thomas has not
demonstrated that his new evidence would have changed the result of
his criminal proceeding. His new evidence consists of four items:
(1) a transcript of a Texas Board of Medical Examiners hearing of
June 1982; (2) a released portion of the Board's investigative file
on him; (3) his medical records; (4) and Freedom of Information Act
files from the Texas Department of Public Safety. Thomas states in
conclusory fashion that his newly discovered evidence shows that
the inculpatory tape was fabricated, but he never tells us how his
newly discovered evidence supports that defense.
To the contrary, he argues in his appellate briefs that he
believes that the tape was fabricated because the voice on the tape
does not sound like his. The evidence supporting this argument is
not the new evidence produced in his coram nobis petition; rather,
it is the old evidence of the tape recording itself. Thomas
listened to the tape recording with his attorney on or about
September 24, 1982, shortly after his arraignment, according to his
own affidavit attached to his coram nobis petition. As he states
in that affidavit, he told his attorney at that time that he "did
not talk, speak or act like the person on the tape recording."

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Because Thomas makes the same argument here without the added
support of any new evidence, Thomas's writ of coram nobis was
rightly denied.
Accordingly, the decision of the district court is AFFIRMED.

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