United States v. Evans

Opinion

FILED United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS September 11, 2007 TENTH CIRCUIT Elisabeth A. Shumaker __________________________ Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee, No. 07-5055 v. (D.Ct. No. 90-CR-0031-001-CV E) (N.D. Okla.) DONALD B.W . EVANS JR.,

Defendant-Appellant. ____________________________

OR D ER AND JUDGM ENT *

Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Appellant Donald B.W . Evans Jr., a pro se litigant and federal inmate,

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. appeals the district court’s denial of his petition for a writ of coram nobis,

pursuant to 28 U.S.C. § 1651, which seeks a reduction of his life sentence. W e

exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. Procedural Background

On M ay 30, 1990, a jury found M r. Evans guilty of conspiracy to distribute

and to possess with intent to distribute fifty grams or more of cocaine base in

violation of 21 U.S.C. §§ 841(b)(1)(A)(iii) and 846. See United States v. Evans,

970 F.2d 663, 666, 679 (10th Cir. 1992), cert. denied, Evans v. United States, 507

U.S. 922 (1993). On August 22, 1990, the district court sentenced M r. Evans to

life imprisonment after conducting an evidentiary hearing and finding the drug

amount attributable to him was 9.5 kilograms of crack cocaine. Id. at 676, 678-

79. In 1992, this court affirmed M r. Evans’s conviction and sentence on direct

appeal, after w hich the United States Supreme Court denied a writ of certiorari.

Id. Thereafter, from 1994 to 2005, M r. Evans filed at least six unsuccessful 28

U.S.C. § 2255 motions to vacate, set aside, or correct his sentence on various

grounds – most of which were considered second or successive § 2255 motions. 1

1 In chronological order, the § 2255 motions or successive motions were disposed of either by order and judgment or by order denying authorization to file a second or successive § 2255 motion, as follows: United States v. Evans, 51 F.3d 287 (10th Cir. M ar. 31, 1995) (unpublished op.); United States v. Evans, 82 F.3d 427 (10th Cir. Apr. 10, 1996) (unpublished op.); Evans v. United States, No. 01-5089, Order filed July 27, 2001; Evans v. United States, No. 04-5136, Order (continued...)

-2- In addition, on June 10, 1996, M r. Evans filed a motion under 18 U.S.C.

§ 3582(c) to modify his sentence, which the district court denied on December 6,

1996. On December 30, 1996, he filed a motion under Federal Rule of Criminal

Procedure 35 for modification of his sentence, which the district court denied on

January 7, 1998.

M ore recently, on January 30, 2006, M r. Evans filed a second motion to

modify his sentence under 18 U.S.C. § 3582, 2 which the district court denied. In

his motion, M r. Evans argued the recent modifications under United States

Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) Amendments 505 and 591,

affecting U.S.S.G. § 2D1.1, should be applied to reduce his sentence. In denying

M r. Evans’s § 3582 motion, the district court explained that even if the

modification applied, his total offense level would only be reduced by two levels,

1 (...continued) filed October 25, 2004; Evans v. United States, No. 05-5078, Order filed A ugust 24, 2005 (granting Appellant’s motion to dismiss appeal on reconsideration of § 2255); Evans v. United States, No. 05-5142, Order filed October 31, 2005. 2 Section 3582(c) allows the court to modify a sentence in only three limited circumstances: 1) on motion of the Director of the Bureau of Prisons if special circumstances exist; 2) if otherwise expressly permitted by statute or Federal Rule of Criminal Procedure 35; or 3) if the sentencing range is subsequently lowered by the Sentencing Commission. United States v. Smartt, 129 F.3d 539, 540-41 (10th Cir. 1997).

-3- resulting in the same sentencing range of life imprisonment. 3 M r. Evans then

filed a motion for reconsideration which the district court also denied. On A ugust

29, 2006, this court dismissed M r. Evans’s untimely appeal for lack of

jurisdiction, and on October 24, 2006, we denied his petition for rehearing. See

United States v. Evans, No. 06-5155.

Turning to the litigation involving this appeal, on February 26, 2007, M r.

Evans filed a “Petition for W rit Pursuant to Title 28 U.S.C. § 1651 The All W rits

Act,” w hich the district court denied on M arch 26, 2007. In his petition, M r.

Evans claimed the district court erred in denying his second § 3582 motion

because it refused to resentence him under the new advisory Guidelines

sentencing standard, rather than the mandatory standard applied when he was

sentenced on August 22, 1990. 4 As a result, he claimed, the district court

erroneously imposed a mandatory sentence of life imprisonment. In addition, he

argued that because habeas relief under § 2255 has been unavailable to him, his

only recourse lies in filing for relief under 28 U.S.C. § 1651.

3 M r. Evans’s total offense level was originally 46. The district court noted that a reduction in the offense level to 44, together with a criminal history category of I, w ould result in a Guidelines sentence of life imprisonment. See U.S.S.G., Ch. 5, Pt. A (Sentencing Table). 4 A review of M r. Evans’s previously filed § 3582 motion establishes that while he did mention United States v. Booker, 543 U.S. 220 (2005), in a footnote, he did not present a detailed argument on this particular Booker issue until his § 1651 petition.

-4- The district court denied M r. Evans’s petition, explaining the issuance of a

writ of coram nobis under 28 U.S.C. § 1651 is an extraordinary remedy allowed

only under compelling circumstances when § 2255 motions or other forms of

relief are not available. It further explained such a writ is generally only used

when the petitioner has served his sentence completely and is no longer “in

custody,” as required for § 2255 relief. W hile the district court acknowledged the

advisory Guidelines standard applied in Booker did not apply retroactively for

collateral relief under § 2255 motions, it explained that because he remained in

custody, the proper action for challenging his sentence remained § 2255, and not

a common law writ. In addition, the district court construed M r. Evans’s § 1651

petition as a motion to reconsider its previous ruling denying relief under 18

U.S.C. § 3582. Relying on our decision in United States v. Price, the district

court explained Booker was also inapplicable as a basis for reduction of a

sentence under § 3582. See 438 F.3d 1005, 1007 & n.2 (10th Cir.), cert. denied,

126 S. Ct. 2365 (2006).

II. Discussion

M r. Evans now appeals the district court’s denial of his petition for a writ

of coram nobis under 28 U.S.C. § 1651, claiming the district court erred in failing

to retroactively apply the Guidelines in an advisory manner. For the first time in

his § 1651 action, he also summarily claims the district court based its sentencing

-5- decision on unreliable information from the presentence report which violates

“Rule 32,” is “still in dispute,” and arbitrarily applies “poisonous fruits.” M r.

Evans’s appeal lacks merit for the follow ing reasons.

To begin, w e review de novo the district court’s denial of a petition for a

writ of coram nobis filed under 28 U.S.C. § 1651 and its factual findings for clear

error. See Klein v. United States, 880 F.2d 250, 255-56 & n.6 (10th Cir. 1989).

As the district court held, a writ of coram nobis is an extraordinary writ because

it extends litigation beyond the final judgment and exhaustion of other remedies.

Id. at 253. Such a writ “is used to attack allegedly invalid convictions which have

continuing consequences, when the petitioner has served his sentence and is no

longer ‘in custody’ for the purposes of 28 U.S.C. § 2255.” United States v.

Stoneman, 870 F.2d 102, 105-06 (3d Cir. 1989). It may be used only to correct

errors resulting in complete miscarriage of justice. See United States v.

Williamson, 806 F.2d 216, 222 (10th Cir. 1986). For this reason, M r. Evans

carries the burden of demonstrating “the asserted error is jurisdictional or

constitutional and results in a complete miscarriage of justice.” Klein, 880 F.2d

at 253.

In this case, it is apparent M r. Evans filed his petition under 28 U.S.C.

§ 1651 for a writ of coram nobis in an effort to find another means to

-6- retroactively apply Booker to his sentence, given this court has expressly held

Booker does not apply retroactively to collateral proceedings under § 2255 and is

not grounds for relief under § 3582. See Price, 438 F.3d at 1007 & n.2 (involving

18 U.S.C. § 3582); U nited States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir.

2005) (involving 28 U.S.C. § 2255).

However, because M r. Evans is serving a life sentence, it is evident he is

still “in custody” and has not served his sentence – the requisites generally

associated with allowing one to petition for such a writ. See Stoneman, 870 F.2d

at 105-06. Even if this limitation did not restrict M r. Evans from proceeding with

his petition, he is still attempting to collaterally attack his sentence under the

guise of § 1651. W e have held Booker applies only to cases on direct review and

not retroactively to cases on collateral review. See Bey v. United States, 399 F.3d

1266, 1269 (10th Cir. 2005). In turn, a motion to correct a sentence pursuant to

28 U.S.C. § 2255 remains the proper avenue for collaterally challenging a federal

conviction or sentence. “W here a statute specifically addresses the particular

issue at hand,” as § 2255 does here, “it is that authority, and not the All W rits Act

[under § 1651], that is controlling.” Carlisle v. United States, 517 U.S. 416, 429

(1996).

The fact M r. Evans has not been successful in his § 2255 motions does not

-7- mean that particular procedural avenue is not available to him, but simply that his

arguments did not warrant merit. In addition, he has not shown in either his

opening brief or reply brief filed on appeal, or anywhere else in the record before

us, that a sentencing error occurred which resulted in a “complete miscarriage of

justice,” as required for a writ under 28 U.S.C. § 1651. See Williamson, 806 F.2d

at 222. 5 Thus, having reviewed the record and briefs on appeal, we conclude the

district court did not err in denying M r. Evans’s § 1651 petition for a writ of

coram nobis.

As to his cursory and somewhat incoherent argument concerning the district

court’s reliance on the presentence report, we construe his pro se pleadings

liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972). W hile we construe

pro se pleadings liberally, we have repeatedly held that perfunctory or cursory

reference to an issue, like here, unaccompanied by some effort at a developed

argument, is inadequate to warrant consideration. See United States v. Almaraz,

306 F.3d 1031, 1041 (10th Cir. 2002) (relying on United States v. LaH ue, 261

F.3d 993, 1009 (10th Cir. 2001), and Femedeer v. Haun, 227 F.3d 1244, 1255

(10th Cir. 2000)). In addition, we generally do not consider claims raised for the

5 For instance, even under an advisory sentencing range scheme, M r. Evans’s advisory sentence would be life imprisonment, regardless of whether the original offense level was 46 or 44, as considered by the district court in M r. Evans’s § 3582 motion. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table).

-8- first time on appeal, except, for instance, when the issue is a question of law, the

proper resolution of w hich is beyond reasonable doubt, and the failure to address

the issue would result in a miscarriage of justice. See Shoels v. Klebold, 375 F.3d

1054, 1062 (10th Cir. 2004). None of those criteria are presented here. Under

the circumstances presented, M r. Evans’s argument is frivolous and we will not

expend further judicial resources considering it.

Finally, since his conviction in 1990, M r. Evans has filed at least ten

different actions and numerous appeals, expending judicial resources on matters

which have either previously been adjudicated or were otherwise deemed

meritless. “The right of access to the courts is neither absolute nor unconditional,

and there is no constitutional right of access to the courts to prosecute an action

that is frivolous or malicious.” Winslow v. Hunter (In re Winslow), 17 F.3d 314,

315 (10th Cir. 1994) (per curiam) (quotation marks and alteration omitted). W e

therefore caution M r. Evans further filings on meritless matters may result in

summary disposition without discussion and an order asking him to show cause

why this court should not limit his future filings and provide for sanctions. See

Andrews v. Heaton, 483 F.3d 1070, 1077-78 (10th Cir. 2007). W e further caution

M r. Evans that the fact he is a pro se litigant does not prohibit the court from

imposing such sanctions against him. See Haworth v. Royal, 347 F.3d 1189, 1192

(10th Cir. 2003).

-9- III. Conclusion

W e grant M r. Evans’s motions for extension of time 6 to file his reply brief

and, for the reasons stated herein, we AFFIRM the district court’s order denying

M r. Evans’s petition filed pursuant to 28 U.S.C. § 1651.

Entered by the C ourt:

W ADE BRO RBY United States Circuit Judge

6 M r. Evans filed a letter on A ugust 22, 2007, which we construed as a motion to file his reply brief out of time by three days; on August 24, 2007, he also filed a motion for extension of time to file his reply brief.

-10-