United States v. Payne

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 18, 2011
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 10-5111
v. (D.C. No. 4:08-CR-00154-TCK-1)
(N.D. Oklahoma)
SHAUNE COREY PAYNE,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Shaune Corey Paine (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 the remedy of coram nobis is available only to
those no longer in federal custody.
I. BACKGROUND
*
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. 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not binding precedent except under the doctrines of law of the case, res judicata,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.
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
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th[e] matter merit[ed] further investigation.” Id. at 21. Defendant filed a timely
notice of appeal.
II. DISCUSSION
Federal courts are authorized to issue a writ of coram nobis in criminal
cases, but “this extraordinary remedy . . . is available only to correct errors that
result in a complete miscarriage of justice.” Klein v. United States, 880 F.2d 250,
253 (10th Cir. 1989) (citation and internal quotation marks omitted). And,
importantly, a prisoner cannot use the writ to challenge a sentence or conviction
that he is serving. See United States v. Torres, 282 F.3d 1241, 1245 (10th Cir.
2002). Because Defendant remains in federal custody on his 2009 conviction, the
district court correctly denied his motion. We decline to construe his motion as
one under § 2255 because it was not filed within one year of his conviction’s
becoming final. See 28 U.S.C. § 2255(f).
III. CONCLUSION
We AFFIRM the order of the district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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