United States v. Coleman , 707 F. App'x 563 ( 2017 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS December 21, 2017
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2049
(D.C. No. 2:10-CR-02603-WJ-1)
VERNON EARL COLEMAN, D. New Mexico
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, MURPHY, and MATHESON, Circuit Judges.
After examining the briefs and the appellate record, this court 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).
Accordingly, the case is ordered submitted without oral argument.
Proceeding pro se, Vernon Earl Coleman appeals the district court’s
imposition of filing restrictions. Our jurisdiction arises under 28 U.S.C. § 1291*
This order and judgment is not binding precedent except under the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.
and we review the imposition of filing restrictions under the abuse-of-discretion
standard. Tripati v. Beaman, 878 F.2d 351, 354 (10th Cir. 1989).
Federal courts may “regulate the activities of abusive litigants by imposing
carefully tailored restrictions under the appropriate circumstances.” Id. at 352.
(quotation omitted). Filing restrictions “are proper where a litigant’s abusive and
lengthy history is properly set forth,” the court provides guidelines as to what the
litigant “must do to obtain the court’s permission to file an action,” and the
litigant receives “notice and an opportunity to oppose the court’s order before it is
instituted.” Id. at 353-54.
Since his 2011 conviction for drug trafficking was affirmed on direct
appeal, United States v. Coleman, 483 F. App’x 419 (10th Cir. 2012), Coleman
has filed six motions and two civil lawsuits in the United States District Court for
the District of New Mexico. 1 All of these actions were challenges to his
conviction or sentence.
1
These actions are as follows: a motion to vacate his conviction pursuant to
28 U.S.C. § 2255; a motion to reduce his sentence pursuant to 18 U.S.C. §
3582(c)(2); a Motion of New Evidence that was properly treated as a second or
successive § 2255 motion, United States v. Coleman, 618 F. App’x 356 (10th Cir.
2015); a third motion pursuant to 28 U.S.C. § 2255; a motion to correct the
presentence investigation report; and a Motion to Correct Sentence. In addition to
these post-conviction motions, Coleman has filed two civil rights lawsuits against,
inter alia, the United States District Court for the District of New Mexico. Both
were properly dismissed for failure to state a claim. Coleman v. United States
Dist. Court of N.M., 678 F. App’x 751 (10th Cir. 2017) (holding that Coleman’s
claims were barred by the Heck doctrine because “they imply the invalidity of his
conviction and sentence”).
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Before imposing filing restrictions, the district court sua sponte issued an
order to show cause, to which Coleman responded. The district court addressed
Coleman’s objections in its order imposing the proposed filing restrictions,
stating:
In his Reasons Restrictions Should Not Be Imposed, Coleman
claims that the Court has confused him with someone named Vernon
Carl Coleman and has mistakenly sentenced him using someone
else’s Presentence Report (“PSR”) and criminal case. The Court has
conducted a thorough examination of the record in all of Coleman’s
criminal cases and finds no evidence that the Court has confused
Coleman with anyone else. There is no record of prosecution of
anyone named Vernon Carl Coleman in this District. . . . The record
further establishes that no other defendant’s convictions have been
used to enhance his sentences or calculate his sentencing range under
the Sentencing Guidelines. . . .
Coleman has repeatedly challenged his conviction and
sentence and been advised by this Court, as well as the Tenth Circuit,
that his conviction and sentence are proper. . . . Coleman’s statement
that he “should be able to continue to file until I get my correct
sentence” . . . demonstrates exactly why filing restrictions are
appropriate in this case. Coleman’s unwillingness to accept that he
has been correctly sentenced and is not legally entitled to any further
relief imposes an undue burden on the Court’s time and resources.
This court has reviewed Coleman’s litigation history and considered the
arguments made in his appellate brief. We can find no abuse of discretion by the
district court. The court complied with the requirements for imposing filing
restrictions by correctly setting out Coleman’s abusive and lengthy post-
conviction litigation history, giving Coleman notice and an opportunity to oppose
the imposition of filing restrictions, and providing Coleman guidelines he can
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follow to receive the district court’s permission to file a future action.
Accordingly, the district court’s imposition of filing restrictions is affirmed.
Coleman’s request to proceed on appeal in forma pauperis is denied and he
is reminded of his obligation to immediately remit any unpaid balance of the
appellate filing fee.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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