United States v. Sam

F I L E D
United States Court of Appeals
Tenth Circuit
JUL 23 2003
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 02-2307
(D.C. Nos. CIV-01-0017 JC/WWD
v.
& CR-95-249 JC)
(D. New Mexico)
SAMUEL HERMAN SAM,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and LUCERO, Circuit Judges.
Samuel Herman Sam, a federal prisoner proceeding pro se, appeals the
district court’s (1) denial of his petition for a writ of coram nobis, (2)
recharacterization of his petition as one for habeas relief under 28 U.S.C. § 2255,
and (3) denial of § 2255 relief. For substantially the same reasons set forth by the
district court, we affirm the denial of Sam’s petition for a writ of coram nobis,
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The 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.
affirm the recharacterization of his petition, deny a certificate of appealability
(“COA”), and dismiss the appeal of the § 2255 denial.
Having pled guilty to three counts of aggravated sexual abuse in violation
of 18 U.S.C. § 2241(a), Sam was sentenced to 188 months’ imprisonment on
January 10, 1996. He did not appeal this sentence on direct review. Nearly five
years later, on January 2, 2001, Sam filed a petition for a writ of coram nobis
under 28 U.S.C. § 1651, alleging ineffective assistance of counsel, lack of federal
jurisdiction, a violation of his right to speedy trial, and that his plea was
involuntary. Denying the petition on July 2, 2001, the district court determined
that coram nobis is not an available remedy primarily because Sam remains
incarcerated. It provided Sam with the opportunity, however, to withdraw the
petition within twenty days; o therwise, the petition would be recharacterized and
considered as a § 2255 petition. Declining the invitation to withdraw yet
objecting to the petition’s recharacterization, Sam filed a motion for
reconsideration and a notice of appeal on July 18, 2001. The district court denied
reconsideration and this court dismissed for lack of jurisdiction because no final
judgment had been entered by the lower court, United States v. Sam , No. 01-2228
(10th Cir. Jan. 4, 2002) (unpublished order). On April 18, 2002, in light of Sam’s
refusal to withdraw the motion, the district court reconstrued it as a petition for
habeas corpus under § 2255 and dismissed it as untimely. Subsequently, Sam
-2-
filed a motion for leave to file an interlocutory appeal on November 4, 2002,
which has been construed as a notice of appeal.
Because Sam proceeds pro se, we must liberally construe his pleadings.
McBride v. Deer , 240 F.3d 1287, 1289 (10th Cir. 2001). As a threshold matter,
we determine whether this appeal was timely filed. Sam had sixty days after the
district court’s decision to submit a notice of appeal. See United States v. Pinto,
1 F.3d 1069, 1070 (10th Cir. 1993). Sam did not do so until November 4, 2002.
While it may appear at first glance that Sam’s appeal is untimely, we conclude
otherwise.
In its final order dated April 18, 2002, the district court provided legal
analysis in its decision but failed to file a separate judgment, thus violating
Federal Rule of Civil Procedure 58. See United States v. Torres, 282 F.3d 1241,
1244 (10th Cir. 2002); Clough v. Rush, 959 F.2d 182, 185–86 (10th Cir. 1992).
An amendment to Rule 58, effective December 1, 2002, provides that in the
absence of entry of a separate judgment, judgment is deemed entered when 150
days have run from entry in the civil docket. Fed. R. Civ. P. 58(b)(2)(B). This
amendment applies to pending actions when it is “just and practicable to do so.”
Order of the Supreme Court Adopting and Amending the Fed. R. Civ. P. (Apr. 29,
2002); see also Espinoza v. United States, 52 F.3d 838, 840 (10th Cir. 1995)
(applying the “just and practicable” standard). In light of Sam’s confusion over
-3-
the finality of the order, reflected in his request for leave to file an interlocutory
appeal in this court, we conclude that the amendment applies under the present
circumstances and deem the judgment denying Sam’s § 2255 petition to have been
entered on September 15, 2002, 150 days after it was entered in the civil docket.
Thus, the November 4, 2002, notice of appeal, filed within sixty days of this date,
is timely.
Proceeding to the merits of Sam’s appeal, we conclude that the district
court properly denied his petition for a writ of coram nobis. See United States v.
Torres, 282 F.3d at 1245 (“[A] prisoner may not challenge a sentence or
conviction for which he is currently in custody through a writ of coram nobis.”).
We hold that the recharacterization of Sam’s petition for a writ of coram nobis
was proper because the district court afforded Sam the opportunity to either
withdraw the petition or have it be characterized as one for § 2255 relief, and Sam
declined the invitation to withdraw. See id. (holding that a district court may
recharacterize a motion as a § 2255 petition where the district court concludes
that the motion may only be considered as one for § 2255 relief and affords the
petitioner an opportunity to withdraw the motion rather than having it be
recharacterized).
As to Sam’s appeal from the denial of § 2255 relief, because his petition
was filed after April 24, 1996, the effective date of the Antiterrorism and
-4-
Effective Death Penalty Act (“AEDPA”), AEDPA’s provisions apply to this case.
See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1 (10th Cir. 1991) (citing Lindh v.
Murphy, 521 U.S. 320 (1997)). AEDPA provides that a petitioner may not appeal
a denial of habeas relief under 28 U.S.C. § 2255 unless a COA is granted.
§ 2253(c)(1)(B). A COA may be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” § 2253(c)(2). When
the district court has denied the petition on procedural grounds, this standard
requires that “the prisoner show[], at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). Because the district court did not grant a COA, we proceed to analyze
whether a COA should be granted.
Denying Sam’s § 2255 petition as untimely, the district court noted that
Sam filed his petition more than five years after his conviction became final.
AEDPA imposes a one-year period of limitations for petitions for relief from
federal custody. § 2255. Where, as here, a conviction became final before
AEDPA’s effective date, a petitioner has a one-year grace period after the
effective date of AEDPA to file his or her petition. See United States v. Hurst,
322 F.3d 1256, 1261 & n.4 (10th Cir. 2003). Sam’s initial petition was filed on
-5-
January 2, 2001, well over a year after AEDPA’s effective date. In his
application for a COA, Sam sets forth no arguments suggesting that his petition
was timely. On the contrary, in his initial petition, he explains that the reason it
is styled as a petition for a writ of coram nobis is because he is time-barred from
filing a petition for a writ of habeas corpus under § 2255. Sam has failed to make
a debatable showing that his § 2255 petition was timely filed.
In sum, having reviewed petitioner’s appellate brief, the district court’s
order, and the material portions of the record on appeal, we AFFIRM the denial
of the writ of coram nobis and recharacterization of Sam’s petition as one for
habeas relief under § 2255. Moreover, no reasonable jurist would conclude that
Sam’s § 2255 petition should have been granted. Sam’s application for a COA is
therefore DENIED, and the appeal of the § 2255 denial is DISMISSED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
-6-