United States v. Eads , 191 F. App'x 709 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 9, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 05-5217
(D. Ct. No. 88-CR-137-HDC)
ERNEST EADS, (N.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in 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.
Defendant-Appellant Ernest Eads, appearing pro se, appeals the District Court’s
denial of his petition for a writ of coram nobis. We have jurisdiction under 28 U.S.C.
§ 1291, and because Mr. Eads fails to explain the sixteen-year gap between his conviction
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
and his petition, we AFFIRM.
I. BACKGROUND
In December 1988, Mr. Eads was charged in a two-count information in the
Northern District of Oklahoma for controlled substance offenses. The following month,
in January 1989, he pleaded guilty to Count One (a felony) and the Government
dismissed Count Two. He completed an 18-month sentence without appealing either his
sentence or his conviction. Around the same time as this conviction, Mr. Eads was
separately convicted of another felony controlled substance offense.
Mr. Eads’ troubles did not end there, however, because in 1997 he was convicted
in the Western District of Missouri of yet another felony controlled substance offense.
Due to his two prior felonies, the Western District of Missouri classified him as a career
felon and sentenced him to life imprisonment. See 21 U.S.C. § 851; United States
Sentencing Guidelines Manual § 4B1.1. In 1998, the United States Court of Appeals for
the Eighth Circuit affirmed both the conviction and sentence. United States v. Eads, 144
F.3d 1151 (8th Cir. 1998).
In 2005, Mr. Eads filed a petition for a writ of coram nobis in the Northern District
of Oklahoma arguing that that court failed to inform him in 1989 of his right to an appeal
and his right to appellate counsel. The District Court declined to issue the writ, in part
due to the belated nature of the petition. Mr. Eads now appeals.
II. DISCUSSION
The writ of coram nobis is available to federal courts in criminal cases under the
-2-
All Writs Act, 28 U.S.C. § 1651. See United States v. Morgan, 346 U.S. 502 (1954);
Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). “It is used to attack allegedly
invalid convictions which have continuing consequences, when the petitioner has served
his sentence and is no longer ‘in custody’ for purposes of 28 U.S.C. § 2255.” United
States v. Stoneman, 870 F.2d 102, 105 (3d Cir. 1989). The writ is an extraordinary one,
however, because it extends litigation beyond the final judgment and the exhaustion of
other remedies. Klein, 880 F.2d at 253. Accordingly, the writ may be used only to
“correct errors that result in a complete miscarriage of justice.” United States v.
Williamson, 806 F.2d 216, 222 (10th Cir. 1986). For this reason, the petitioner must
exercise due diligence in seeking the writ, and he carries the burden to make such a
demonstration. Klein, 880 F.2d at 253–54.
As the District Court noted, Mr. Eads has failed to show why he has made no
attempt to raise the substance of his coram nobis petition at any time for the past sixteen-
plus years since his conviction in 1989. Rather, Mr. Eads simply contends that his case
warrants special consideration notwithstanding his delay. Such an assertion does not
satisfy Mr. Eads’ burden to demonstrate due diligence, and for this reason we affirm the
dismissal of his petition.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Chief Circuit Judge
-3-