This is an appeal from the denial of a motion to reconsider the denial of a federal prison inmate's petition for a writ of error coram nobis. The petitioner filed a notice of appeal 18 days after the denial of his motion. The threshold question - a question of first impression in this circuit - is whether the appeal is to be treated as a civil appeal under Fed. R. App. P. 4(a), subject to a 60-day appeal period because the United States is a party, or as a criminal appeal under Fed. R. App. P. 4(b), subject to a 10-day appeal period.

Like the majority of courts of appeals that have been confronted with this question, we conclude that the 60-day appeal period applies. Although we hold that the petitioner's appeal is thus timely, we further hold that the appeal lacks merit because coram nobis relief is not available while the petitioner is in federal custody. The challenged order will be affirmed.

On May 21, 1992, a federal grand jury indicted the petitioner, Conrad Lee Johnson, on drug and vehicle theft charges. The case ultimately went to trial on three counts: (1) conspiracy to manufacture marijuana with intent to distribute it, aviolation of 21 U.S.C. 846; (2) aiding and abetting the manufacture of marijuana, a violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2; and (3) aiding and abetting the possession of marijuana with intent to distribute it, a violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2.

On December 8, 1992, the jury returned a verdict of guilty on each count. The district court subsequently sentenced Johnson to imprisonment for a term of 60 months, to be followed by a four-year term of supervised release. Johnson did not appeal.

On July 14, 1993 - Bastille Day, appropriately enough - Johnson escaped from prison. He remained at large until January 26, 1995, when he was recaptured. Convicted of escape, he was sentenced to an additional 12 months in prison. Again there was no appeal.

On March 10, 1997, proceeding pro se, Johnson filed a petition for a writ of error coram nobis seeking to have his 1992 conviction vacated1. The petition asserted that the district court lacked jurisdiction, that the prosecutor was without statutory authority to prosecute, and that venue was improper. When the petition was denied, Johnson filed an "objection" to the judgment. The district court treated this as a motion for reconsideration, which it denied on May 18, 1998.

Mr. Johnson filed a notice of appeal from the May 18 order on June 5, 1998. This court then entered a show cause order directing the petitioner to explain why the appeal should not be dismissed as untimely. See United States v. Johnson, No. 98-5779, Order (6th Cir. June 29, 1998).

Mr. Johnson filed a pro se response to the show cause order, and the government replied. The court then referred the appeal to a hearing panel, appointed counsel for Johnson, and directed that the matter be re-briefed. See United States v. Johnson, No. 98-5779, Order (6th Cir. Sept. 21, 1998). The briefs having been filed and the panel having heard oral argument, the case is now ripe for decision.

At common law, the writ of error coram nobis was used as a device for correcting fundamental errors in both civil and criminal cases. Although use of the writ was suspended in civil cases pursuant to Fed. R. Civ. P. 60(b), it survived in the criminal context. See United States v. Morgan, 346 U.S. 502, 506 (1954), where the Supreme Court held in that context that federal courts retained power to issue the writ, under certain circumstances, pursuant to the All Writs Act, 28 U.S.C. 1651. Morgan teaches that a writ of error coram nobis may sometimes be used to vacate a federal conviction after the petitioner has already served his sentence and relief under 28 U.S.C. 2255 is unavailable.

Although Morgan confirmed that criminal convictions might be subject to review in coram nobis proceedings, the decision does not clearly specify which rules of procedure - criminal or civil - are applicable to such proceedings. Courts of appeals confronted with the issue have sought guidance from a rather Delphic footnote in which the Morgan Court said that a coram nobis motion "is a step in the criminal case and not, like habeas corpus where relief is sought in a separate case and record, the beginning of a separate civil proceeding . . . . This motion is of the same general character as one under 28 U.S.C. 2255." Morgan, 346 U.S. at 506 n. 4.

On its face, footnote 4 is self-contradictory. On the one hand, it characterizes the filing of an application for a writ of error coram nobis as a "step in the criminalcase," thus implying that the writ should be subject to criminal procedural rules - and the footnote goes on to contrast coram nobis with habeas corpus, where civil procedures apply. On the other hand, the footnote concludes by stating that a motion for the writ of error coram nobis is "of the same general character as one under 28 U.S.C. 2255." The procedural rules governing 2255 petitions are, of course, civil in nature.

Given this contradictory language, it is not surprising that a circuit split should have developed. A minority of appellate courts have treated the writ of error coram nobis as "a step in the criminal case," subject to the 10-day appeals period erected in Rule 4(b). See, e.g., Yasui v. United States, 772 F.2d 1496, 1499 (9th Cir. 1985); United States v. Mills, 430 F.2d 526, 528 (8th Cir. 1970), cert. denied, 400 U.S. 1023 (1971). A majority of courts, however, have treated the application for the writ as similar in character to a 2255 motion and have held that appeals from judgments in both types of cases are subject to the more generous 60-day appeals period. See, e.g., United States v. Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993); United States v. Craig, 907 F.2d 653, 655-57 (7th Cir. 1990), cert. denied, 500 U.S. 917 (1991); United States v. Cooper, 876 F.2d 1192, 1193-1194 (5th Cir. 1989), abrogated in part on other grounds by Smith v. Barry, 502 U.S. 244 (1992); United States v. Keogh, 391 F.2d 138, 140 (2d Cir. 1968).

Those courts that have applied criminal procedural rules to coram nobis proceedings have stressed that the Morgan footnote characterizes the coram nobis petition as "a step in the criminal case." We are not persuaded, however, that this statement should be read literally. A literal reading ignores the fact that 2255 petitions can likewise be characterized as "a further step in the movant's criminal case and not a separate civil action." See Rules Governing Section 2255 Proceedings, Rule 1 and Rule 11, advisory committee notes.

As we have seen, the Morgan footnote itself recognizes the similarity between coram nobis petitions and motions under 2255. Our court too has commented on the substantive similarities between 2255 and coram nobis. See Pitts v. United States, 763 F.2d 197, 198 n. 1 (6th Cir.1985), (noting that the standards for granting relief under 2255 and coram nobis are substantially the same). And in Blanton v. United States, 94 F.3d 227 (6th Cir. 1996), we recognized that "[b]ecause of the similarities between coram nobis proceedings and 2255 proceedings, the 2255 procedure often is applied by analogy in coram nobis cases." Id. at 235. It follows, in our view, that although "a coram nobis motion is a step in a criminal proceeding, [it] is, at the same time, civil in nature and subject to the civil rules of procedure." United States v. Ballistrieri, 606 F.2d 216, 221 (7th Cir. 1979).

It should be added that the policy reasons for a shorter appeals period under Rule 4(b) are not normally present in the coram nobis context. The filing of a coram nobis petition usually becomes possible only after the defendant has served his sentence and has been released from prison. That being so, "there is no societal or individual interest in prompt adjudication of the petition while a prisoner is languishing in jail." See Craig, 907 F.2d at 656. When these interests are not present, the more relaxed time limits of Rule 4(a) seem appropriate. See id.

For all of these reasons, we believe that the 60-day appeals period prescribed by Rule 4(a)(1)(B) is applicable to petitions for a writ of error coram nobis2. Mr. Johnson'snotice of appeal having been filed within 60 days of the district court's final order, this court has jurisdiction over the appeal.

A district court's determination of legal issues in coram nobis proceedings is reviewed de novo. See Blanton, 94 F.3d at 230. The district court's findings of fact, however, must be upheld unless clearly erroneous. See id.

Coram nobis is an extraordinary writ, used only to review errors of the most fundamental character - e.g., errors rendering the proceedings themselves invalid. See id. To be entitled to relief, the petitioner must demonstrate (1) an error of fact; (2) unknown at the time of trial; (3) of a fundamentally unjust character which probably would have altered the outcome of the challenged proceeding if it had been known. See id. In addition, the writ of coram nobis is available only "when a 2255 motion is unavailable - generally, when the petitioner has served his sentence completely and thus is no longer 'in custody' as required for 2255 relief." Id.

In the case at bar, although 2255 relief is no longer available to him, Mr. Johnson remains a prisoner in federal custody. A prisoner in custody is barred from seeking a writ of error coram nobis. See United States v. Brown, 117 F.3d 471, 475 (11th Cir. 1997) (holding that coram nobis relief is not available to a prisoner in custody); United States v. Bush, 888 F.2d 1145, 1147 (7th Cir. 1989) (same); United States v. Little, 608 F.2d 296, 299 n.5 (8th Cir. 1979), cert. denied, 444 U.S. 1089 (1980) ("Coram nobis lies only where the petitioner has completed his [or her] sentence and is no longer in federal custody, is serving a sentence for a subsequent state conviction, or has not begun serving the federal sentence under attack"); United States v. Brown, 413 F.2d 878, 879 (9th Cir. 1969) (holding coram nobis relief unavailable to a prisoner in custody), cert. denied, 397 U.S. 947 (1970). Johnson's petition therefore fails.

Mr. Johnson contends that even if he is not entitled to coram nobis relief, we should remand the case to the district court for an evidentiary hearing on the challenges to the trial court's jurisdiction, the prosecutor's authority, and venue. We see no basis for doing so. If Johnson is procedurally barred, there is no point in taking evidence to determine whether relief might be warranted if it were not procedurally barred. Moreover, the district court addressed all of Johnson's stated grounds for relief and properly found them to be without merit.

AFFIRMED.