U.S. v. Payne

Decision Date10 May 2011
Docket NumberNo. 10–5111.,10–5111.
Citation644 F.3d 1111
PartiesUNITED STATES of America, Plaintiff–Appellee,v.Shaune Corey PAYNE, Defendant–Appellant.
CourtU.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 PlaintiffAppellee.Before KELLY, HARTZ, and HOLMES, Circuit Judges.

ORDER

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.

HARTZ, Circuit Judge.

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.

I. BACKGROUND

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.

II. DISCUSSION

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) (granting coram nobis relief to petitioners in custody for the convictions they challenged). But cf. United States v. Torres, 282 F.3d 1241, 1245 (10th Cir.2002) ([A] prisoner may not challenge a sentence or conviction for which he is currently in custody through a writ of coram nobis.”).

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) ([A writ of coram nobis ] will issue only when no other remedy is available ....” (internal quotation marks omitted)), 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) ([T]he writ [of coram nobis ] is only available when other remedies and forms of relief are unavailable or inadequate.”); 1 3 Charles Alan Wright & Sarah N. Welling, Federal Practice & Procedure § 624 at 652 (4th ed. 2011) (“Coram nobis is unnecessary, and will not lie, if the defendant is in custody and has a remedy available under § 2255.”); 28 James Wm. Moore, Moore's Federal Practice § 672.02[2][c] at 672–44 (3d ed. 2010) (“Coram nobis relief is only available if the petitioner no longer satisfies the custody requirement for seeking relief under section 2241 or 2255.”); 7 Wayne R. LaFave et al., Criminal Procedure § 28.9(a) at 282 (3d ed. 2007) (“the writ [of coram nobis ] is only an option if § 2255 or other relief is not available or adequate”).

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) ( § 2255 is not inadequate or ineffective merely because district court, perhaps incorrectly, dismissed § 2255 motion as time-barred); Matus–Leva v. United States, 287 F.3d 758, 760–61 (9th Cir.2002) (writ of error coram nobis requires that other remedies be unavailable; § 2255 relief is not unavailable merely because it is time-barred).

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) (“To be credible, [a claim of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence....”). 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.

III. CONCLUSION

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...

To continue reading

Request your trial
37 cases
  • United States v. Games–Perez
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 17 September 2012
    ...Cir.2012) (reversing interpretation of statutory provision allowing deported aliens to reopen their cases); United States v. Payne, 644 F.3d 1111, 1113 n. 2 (10th Cir.2011) (reversing 20 year old interpretation of 28 U.S.C. § 2255); United States v. Bowling, No. 08–6184, 2009 WL 6854970, at......
  • Guerrero v. United States, 1:15-CV-7282-GHW
    • United States
    • U.S. District Court — Southern District of New York
    • 20 April 2017
    ...as ageneric term encompassing all of the proceedings leading up to the sentence, including the conviction. See United States v. Payne, 644 F.3d 1111, 1113 n.2 (10th Cir. 2011); Thomas v. United States, 368 F.2d 941, 945-46 (5th Cir. 1966); Kyle v. United States, 297 F.2d 507, 511 n.1 (2d Ci......
  • State v. Hutton, 16-1069
    • United States
    • West Virginia Supreme Court
    • 1 November 2017
    ...a fundamental constitutional right established pursuant to Padilla.5 In support of its argument, the State cites United States v. Payne, 644 F.3d 1111 (10th Cir. 2011), wherein the court denied the defendant's request for a writ of error coram nobis, finding "[i]t [was] irrelevant that a § ......
  • State v. Barraza
    • United States
    • Court of Appeals of New Mexico
    • 21 September 2011
    ...inadequate, then the common law remedy of coram nobis or its statutory counterpart is not available. See, e.g., United States v. Payne, 644 F.3d 1111, 1112–13 (10th Cir.2011) (affirming the denial of the petitioner's motion for coram nobis relief because the petitioner failed to show that h......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT