U.S. v. Payne
Decision Date | 10 May 2011 |
Docket Number | No. 10–5111.,10–5111. |
Citation | 644 F.3d 1111 |
Parties | UNITED STATES of America, Plaintiff–Appellee,v.Shaune Corey PAYNE, Defendant–Appellant. |
Court | U.S. Court of Appeals — Tenth Circuit |
OPINION TEXT STARTS HERE
Appeal from the United States District Court for the Northern District of Oklahoma. (D.C. No. 4:08–CR–00154–TCK–1).*Shaune Corey Payne, pro se.Leena Alam, Assistant United States Attorney, (Thomas Scott Woodward, United States Attorney, Northern District of Oklahoma, with her on the brief), Tulsa, Oklahoma, for Plaintiff–Appellee.Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Appellant's petition for rehearing is granted for the limited purpose of revising the order and judgment filed January 18, 2011, and replacing it with the attached opinion.
The petition for rehearing en banc was transmitted to all of the judges of the court who are in regular active service. As no member of the panel and no judge in regular active service on the court requested that the court be polled, that petition is denied.
On a petition for rehearing by Defendant Shaune Corey Payne, we withdraw our prior order and judgment filed on January 18, 2011, and substitute the following:
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 he has failed to show that relief under 28 U.S.C. § 2255 was unavailable or would have been inadequate.
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 th[e] matter merit[ed] further investigation.” Id. at 21. Defendant filed a timely notice of appeal.
Defendant argues that a writ of error coram nobis is available even to a prisoner who is, like him, still in custody on the conviction he seeks to challenge. See United States v. Dawes, 895 F.2d 1581, 1582 (10th Cir.1990) ( ). But cf. United States v. Torres, 282 F.3d 1241, 1245 (10th Cir.2002) ().
But even if Defendant's incarceration on the challenged conviction is not an absolute bar to relief under a writ of error coram nobis, he is not entitled to such relief unless relief under 28 U.S.C. § 2255 was unavailable or would have been inadequate. See Santos–Sanchez v. United States, 548 F.3d 327, 331 (5th Cir.2008) , vacated on other grounds, ––– U.S. ––––, 130 S.Ct. 2340, 176 L.Ed.2d 559 (2010); Embrey v. United States, 240 Fed.Appx. 791, 794 (10th Cir.2007) (unpublished) (); 1 3 Charles Alan Wright & Sarah N. Welling, Federal Practice & Procedure § 624 at 652 (4th ed. 2011) (); 28 James Wm. Moore, Moore's Federal Practice § 672.02[2][c] at 672–44 (3d ed. 2010) (); 7 Wayne R. LaFave et al., Criminal Procedure § 28.9(a) at 282 (3d ed. 2007) ().
Defendant has failed to offer any explanation why he could not have pursued relief under § 2255.2 It is irrelevant that a § 2255 motion would have been untimely by the time he filed his petition for a writ of coram nobis. See Sines v. Wilner, 609 F.3d 1070, 1073–74 (10th Cir.2010) ( ); Matus–Leva v. United States, 287 F.3d 758, 760–61 (9th Cir.2002) ( ).
As for Defendant's actual-innocence claim, even if a colorable claim of actual innocence might be entitled to special treatment, his claim is not colorable. See Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (). Defendant states that he did not possess any drugs on the day of his arrest and that the police planted the drugs that they found. His only new “evidence,” however, is the 2010 indictment of some law-enforcement officers in Tulsa because they planted drugs on other suspects. But he does not allege that the officers involved in his case were indicted, only that they had worked with the indicted officers.
We AFFIRM the district court's denial of Defendant's motion for a writ of error coram nobis.
* 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.
1. We cite to unpublished opinions only for their persuasive power.
2. In Dawes we appeared to hold that § 2255 relief was unavailable because § 2255 “provides only for vacation or correction of a sentence ” and could not be used to set aside a conviction. 895 F.2d at 1582. But insofar as Dawes...
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