United States v. Payne

644 F.3d 1111, 2011 WL 1760423

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 18, 2011
• Docket: 10-5111
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS January 18, 2011 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 10-5111 v. (D.C. No. 4:08-CR-00154-TCK-1) (N.D. Oklahoma) SHAUNE COREY PAYNE,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before KELLY, HARTZ, and HOLMES, Circuit Judges.

Shaune Corey Paine (Defendant), a federal prisoner in Texas, appeals the

district court’s denial of his motion for writ of error coram nobis to vacate his

conviction. We affirm because the remedy of coram nobis is available only to

those no longer in federal custody.

I. BACKGROUND

* 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. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. A grand jury indicted Defendant in the United States District Court for the

Northern District of Oklahoma on one count of knowingly and intentionally

possessing with the intent to distribute 50 grams or more of a substance

containing detectable amounts of cocaine base. See 21 U.S.C. § 841(a)(1) and

(b)(1)(A)(iii). He pleaded guilty and was sentenced on February 10, 2009, to 120

months’ imprisonment.

Defendant did not appeal his conviction or file a motion for relief under

28 U.S.C. § 2255. But on September 1, 2010, he filed a motion for writ of error

coram nobis under 28 U.S.C. §1651(a). He asserted that he was not guilty and

had pleaded guilty only because his counsel had advised him that doing so would

“reduce the possible time he would get if he were to go to trial.” R., Vol. 1 at 13.

He further claimed that his rights had been violated by three Tulsa police officers

who had worked with two law-enforcement officers (one of whom was a federal

agent) who were later indicted by a grand jury for “planting drugs on other

persons.” Id. Defendant did not allege, however, that either of the indicted

officers had been involved in his case. Defendant also moved for appointment of

counsel and for his release pending the district court’s ruling on his motion for

writ of error coram nobis.

On September 10, 2010, the district court denied Defendant’s motions but

directed the clerk of the court to send a copy of his motion for writ of error coram

nobis to Special Attorney Jane W. Duke “so that [she] may determine whether

-2- th[e] matter merit[ed] further investigation.” Id. at 21. Defendant filed a timely

notice of appeal.

II. DISCUSSION

Federal courts are authorized to issue a writ of coram nobis in criminal

cases, but “this extraordinary remedy . . . is available only to correct errors that

result in a complete miscarriage of justice.” Klein v. United States, 880 F.2d 250,

253 (10th Cir. 1989) (citation and internal quotation marks omitted). And,

importantly, a prisoner cannot use the writ to challenge a sentence or conviction

that he is serving. See United States v. Torres, 282 F.3d 1241, 1245 (10th Cir.

2002). Because Defendant remains in federal custody on his 2009 conviction, the

district court correctly denied his motion. We decline to construe his motion as

one under § 2255 because it was not filed within one year of his conviction’s

becoming final. See 28 U.S.C. § 2255(f).

III. CONCLUSION

We AFFIRM the order of the district court.

ENTERED FOR THE COURT

Harris L Hartz Circuit Judge

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