Shook v. United States, MC 17-0024 JB

CourtUnited States District Courts. 10th Circuit. District of New Mexico
PartiesJAMES SHOOK, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Docket NumberMC 17-0024 JB
Decision Date18 October 2021

JAMES SHOOK, Petitioner,


No. MC 17-0024 JB

United States District Court, D. New Mexico

October 18, 2021

Levi Albert Monagle Hall & Monagle, LLC Attorneys for the Petitioner

Fred J. Federici Acting United States Attorney Edward Han Jack Burkhead Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Respondent


THIS MATTER comes before the Court on: (i) the Petitioner's Petition for Expungement of a Criminal Offense, filed March 3, 2017 (Doc. 1)(“Petition”); and (ii) the Motion to Dismiss Based on Lack of Jurisdiction, filed March 27, 2017 (Doc. 4)(“Motion”). The Court held a hearing on August 13, 2019. See Clerk's Minutes at 1, filed August 13, 2019 (Doc. 10). The primary issues are: (i) whether the Court has jurisdiction to rule on a petition for expungement of a criminal offense, where Petitioner James Shook does not argue that his conviction is somehow unlawful, but, instead, argues that the Court should expunge his 1992 bank larceny conviction because Shook alleges that he has suffered adverse employment consequences as a result of his felony conviction and wishes to own a firearm; and (ii) whether Shook has demonstrated that his case presents rare and extraordinary circumstances that are necessary to grant a petition for expungement. The Court concludes that: (i) the Court has ancillary jurisdiction to rule on a petition for expungement of a criminal conviction, because the United States Court of Appeals for the Tenth Circuit held in United States v. Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993), that district courts have inherent equitable authority to expunge criminal convictions; and (ii) the Court will not expunge Shook's criminal record, because (a) Shook does not allege that his conviction is somehow unlawful,


(b) Shook presents no evidence that his conviction was unlawful, (c) Shook's interests in having his conviction expunged -- to possess a firearm -- do not outweigh Respondent United States of America's interest in maintaining accurate criminal records, because the United States, and (d) Shook's case does not present unusually compelling circumstances, because the problems he reports that resulted from his felony convictions are common to all felons. Accordingly, the Court dismisses the Petition and denies the Motion to Dismiss.


The Court takes its facts from: (i) the Petition; (ii) the Affidavit in Support of Petition to Expunge Criminal Record, filed October 2, 2019 (Doc. 11)(“Shook Aff.”); (iii) the Judgment in Criminal Case, filed March 3, 2017 (Doc. 1-1)(“J&C”); (iv) the Memorandum of Understanding Regarding Guilty Plea (dated May 4, 1992), filed March 13, 2017 (Doc. 1-2)(“Plea Agreement”); (v) the Background Check (dated October 17, 2016), filed March 13, 2017)(Doc. 1-3); and (vi) the Presentence Report (dated June 2, 1992), filed August 18, 2021 (Doc. 13)(“PSR”).

1.Shook's Childhood and Early Life.

1. Shook was born in California in 1972, but spent his childhood primarily in New Mexico. See PSR ¶¶ 31-32, at 8.

2. Shook “was first identified as having a learning disability in kindergarten” and was later diagnosed as dyslexic. PSR ¶ 32, at 8.

3. Shook's father abused him both physically and emotionally, and “did not understand” his disabilities. PSR ¶ 32, at 8.

4. Shook was hospitalized several times during his childhood because of the “severe mental/emotional abuse by his father”; Shook's “admission diagnosis was a conduct disorder and drug abuse.” PSR ¶¶ 32-34, at 8.


5. Shook withdrew from school at age eighteen, when he was “classified as a sophomore.” PSR ¶ 38, at 9.

6. Shook “was enrolled in special education classes” “throughout his education.” PSR ¶ 38, at 9.

7. After withdrawing from school, Shook worked as a stocker at a small grocery store on Kirtland Air Force Base in Albuquerque, New Mexico, then at Pizza Hut as a delivery driver, and later as a dishwasher at a restaurant in Albuquerque. See PSR ¶¶ 39-41, at 9-10.

2.Shook's Criminal Conviction.

8. On October 30, 1991, Shook's friend, Robert Frodsham, called Shook and asked Shook to come to Frodsham's home. See PSR ¶ 10, at 4.

9. Shook drove to Frodsham's home to pick him up. See PSR ¶ 10, at 4.

10. After Frodsham got in the car, he “informed” Shook “that we were going to rob the bank.” PSR ¶ 10, at 5.

11. Shook's “first reaction was that I did not want to rob the bank, however, Robert talked me into going along with his plan to rob the bank.” PSR ¶ 10, at 5; Shook Aff. ¶ 1-2, at 1.

12. Shook and Frodsham drove to a Bank of America in Albuquerque. See PSR ¶ 10, at 5.

13. Shook dropped Frodsham off in front of the Bank of America and drove to an apartment complex to wait for Frodsham. See PSR ¶ 10, at 5.

14. Meanwhile, Frodsham entered the Bank of America “wearing a dark blue overcoat and a dark ski mask and carrying a shotgun.” PSR ¶ 5, at 4.

15. Frodsham loaded the gun and stated, “this is a robbery, you have 30 seconds to fill this bag, or I'll shoot somebody.” PSR ¶ 5, at 4.


16. Frodsham then pointed the gun towards the bank tellers. See PSR ¶ 5, at 4.

17. Frodsham threw a gym bag on the counter, and the tellers filled the bag with $7, 673.00. See PSR ¶ 5, at 4.

18. Frodsham took the bag and fled, leaping over a chain-link fence. See PSR ¶ 5, at 4.

19. Frodsham met Shook at the apartment complex, and the two drove to the home of Frodsham's girlfriend, Chrissy Haskins. See PSR ¶¶ 7, 10, at 4, 5; Shook Aff. ¶ 1-2, at 1.

20. At Haskins' home, Frodsham gave Shook his share of the money -- $1, 500.00. See PSR ¶ 10, at 5; Shook Aff. ¶ 1-2, at 1.

21. Frodsham and Haskins kept the remainder of the money. See PSR ¶ 7, at 4.

3.Shook's Arrest, Sentence, and Supervised Release.

22. On November 11, 1991, Federal Bureau of Investigations (“FBI”) agents arrested Shook and Frodsham. PSR ¶ 8, at 4.

23. Both men admitted their involvement in the bank robbery and “provided information regarding other illicit activities in which they had been involved.” PSR ¶ 8, at 4.

24. Shook told FBI agents:

Thinking back on what occurred, I can't believe I actually took part in something like this. This incident forced me to reevaluate my life and make drastic changes in the way I conduct my life. I have enrolled . . . and am going to take the high school equivalency test so that I may receive a high school diploma. I am truly sorry for my role in this offense, and I know that this is something I will never do or take part in again

PSR ¶ 11, at 5.

25. Shook signed the Plea Agreement on May 4, 1992. See Plea Agreement at 1; PSR ¶ 2, at 3.


26. On June 2, 1992, the United States Probation Office (“USPO”) prepared the PSR. PSR at 2 (no paragraph numbering).

27. The USPO calculated an offense level of 6 and a Criminal History Category of I, generating a Guideline imprisonment range of 0 to 6 months. See PSR ¶ 26, at 7.

28. Had Shook been found guilty of all the charges listed in the Indictment, he would have had a Guideline range of 46 to 57 months. See PSR ¶ 51, at 11.

29. On July 17, 1992, Shook pled guilty to Bank Larceny, see 18 U.S.C. § 2113(b), Aiding and Abetting, see 18 U.S.C. § 2. See also Plea Agreement at 1; Shook Aff. ¶ 3 at 2.

30. The Honorable John E. Conway, then-United States District Judge for the United States District Court for the District of New Mexico, adopted “the factual findings and guideline applications in the presentence report . . . .” J&C at 2.

31. Judge Conway found:

The Court finds that the offense level is six (6) and the criminal history category is I, establishing a guideline imprisonment range of zero (0) to six (6) months. The Court takes judicial notice that the defendant drove a getaway car during the armed robbery of a bank, in which $7, 673.00 was stolen, Defendant is before the Court for sentencing on a plea to Bank Larceny; he has no prior record, but did accept proceeds from the offense. The sentence imposed will reflect the sentencing goals of punishment, deterrence, and protection of the public.

J&C at 2. See Petition at 2; Shook Aff. ¶ 5 at 2.

32. Judge Conway sentenced Shook to six months of imprisonment. See J&C at 2.

33. Judge Conway explained that his “intention is that the defendant serve four (4) months at the La Pasada Halfway House and two months on live out status[1] with electronic


monitoring.” J&C at 2.

34. Judge Conway also placed Shook on Supervised Release for three years. See J&C at 2.

35. Shook self-surrendered to La Pasada Halfway House on August 31, 1992. See J&C at 4.

36. While at La Pasada, Shook was “allowed to attend school and work, ” and attended school and work. Shook Aff. ¶ 9, at 2.

37. Shook complied with his sentence's terms and completed his Supervised Release “without issue.” Shook Aff. ¶ 9, at 2.

4.Shook's Life Following his Sentence.

38. Since completing his sentence, Shook has “not been arrested for, charged with, or convicted of any other criminal offense.” Shook Aff. ¶ 10, at 2. See Background Check at 5-6; Petition at 2.

39. Shook has worked as a plumber for “TLC plumbing in Albuquerque, New Mexico, ” for seventeen years. Shook Aff. ¶ 13 at 2.

40. Shook is a homeowner, has two children, and has a fiancé. See Shook Aff. ¶ 13-acts. In actuality, Community Corrections Center (CCC) programs have used this approach (calling it “live out” status) for many years. In this program, inmates spend the final portion of their sentence at home, while still in prisoner status. By allowing such offenders to leave home only to work at their regular jobs, the Court


16 at 2-3.

41. Shook now wishes to own a firearm for “the limited purpose of defending my home and my family.” Shook Aff. ¶ 13-16 at 2-3.


On March 13,...

To continue reading

Request your trial

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