United States v. Bart Shoupe ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2076
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Bart Ellis Shoupe, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 7,2008
Filed: November 17, 2008
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Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
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PER CURIAM.
Bart Ellis Shoupe appeals the district court’s1 denial of his petition for a writ of
error coram nobis. Shoupe sought to challenge a 1991 federal conviction for which
he has served the sentence, because that conviction was used to enhance his sentence
for another conviction in 2003.
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The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas, adopting the report and recommendations of the
Honorable J. Thomas Ray, United States Magistrate Judge for the Eastern District of
Arkansas.
We conclude that the district court did not err in denying coram nobis relief.
See United States v. Comacho-Bordes, 94 F.3d 1168, 1173 (8th Cir. 1996) (standard
of review; coram nobis relief is granted only where necessary to achieve justice and
to correct fundamental errors). We agree with the district court that Shoupe’s claims
are barred by the abuse-of-the-writ doctrine, as he could have raised them at the
appropriate time on direct appeal or in a motion under 28 U.S.C. § 2255 before
completion of his supervised release. See id. at 1172-73 (abuse-of-the-writ principles
apply to coram nobis relief); Azzone v. United States, 341 F.2d 417, 419 (8th Cir.
1965 (per curiam) (coram nobis may not be used as substitute for appeal); cf.
McCleskey v. Zant, 499 U.S. 467, 489 (1991) (petitioner cannot raise claim in
subsequent petition that he could have raised earlier). Shoupe’s assertion that his pro
se status prevented him from discovering earlier the investigation report on which he
based his claims does not constitute excusable neglect for failing to raise the claims,
especially given that Shoupe was present at the suppression hearing where the report
was, in fact, used. See McCleskey, 499 U.S. at 490, 493 (petitioner must show
legitimate excuse for failing to raise claim at appropriate time); United States v.
Kwan, 407 F.3d 1005, 1011 (9th Cir. 2005) (to qualify for coram nobis relief,
petitioner must have valid reason for not attacking conviction earlier); cf. Smittie v.
Lockhart, 843 F.2d 295, 298 (8th Cir. 1988) (petitioner’s pro se status and limited
educational background are not sufficient cause for failing to pursue state-court
remedies).
Further, the magistrate judge did not abuse his discretion in denying some of
Shoupe’s discovery requests or in declining to review the file in camera before ruling.
See Executive Air Taxi Corp. v. City of Bismarck, 518 F.3d 562, 569 (8th Cir. 2008)
(standard of review for discovery ruling); United States v. Price, 542 F.3d 617, 621-22
(8th Cir. 2008) (standard of review for district court’s refusal to conduct in camera
review). Last, we find no abuse of discretion in the denial of either Shoupe’s request
for counsel, see Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998) (standard of
review; relevant factors); Steele v. United States, 518 F.3d 986, 988 (8th Cir. 2008)
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(constitutional right to counsel extends to first appeal of right and no further), or his
motion to reconsider, see Arnold v. Wood, 238 F.3d 992, 998 (8th Cir. 2001)
(standard of review).
The judgment is affirmed.
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