Adkins v. Callahan

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 1, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
KILM ADKINS,
Petitioner - Appellant,
No. 05-6019
v. (D.C. No. 04-CV-1338-T)
(W.D. Okla.)
DENNIS CALLAHAN, Warden, FTC;
THE ATTORNEY GENERAL OF
THE STATE OF OKLAHOMA,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. **
Petitioner-Appellant Kilm Adkins, a federal prisoner appearing pro se,
seeks to appeal the dismissal of his petition for a writ of coram nobis. 28 U.S.C.
§ 1651. He seeks leave to appeal in forma pauperis.
In the Western District of Missouri, Mr. Adkins was convicted on a guilty
*
This order and judgment is not binding precedent, except under the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.
**
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); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
plea of conspiring to distribute cocaine base and using a firearm in relation to a
drug trafficking offense and sentenced to 352 months in prison; the judgment was
affirmed on appeal. United States v. Adkins, No. 92-2829, 1993 WL 157428 (8th
Cir. May 17, 1993). Mr. Adkins states that he was resentenced to 322 months
after a § 2255 motion in the sentencing court. He then filed a § 2241 habeas
petition in federal court in South Carolina without relief.
Mr. Adkins is required to demonstrate not only a financial inability to pay
the required fees, but also “a reasoned, nonfrivolous argument on the law and
facts in support of the issues raised on appeal.” McIntosh v. United States Parole
Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (internal quotation and citation
omitted). Although a § 1651 petition is not a “civil action” for purposes of §
1915(a)(2) and (b), a petitioner still must comply with the good faith requirements
of 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24(a)(3)(A), and the appeal is
subject to dismissal if shown to be frivolous. 28 U.S.C. § 1915(e)(2)(B)(i);
McIntosh, 115 F.3d at 812.
In the Tenth Circuit and at least three other federal appellate circuits, a writ
of “coram nobis is not available in a federal court as a means of attack on a state
criminal judgment.” Obado v. New Jersey, 328 F.3d 716, 718 (3d Cir. 2003)
(citing cases); see also Rivenburgh v. Utah, 299 F.2d 842, 843 (10th Cir. 1962).
Moreover, to the extent that Mr. Adkins is attacking his criminal conviction and
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sentence from the Western District of Missouri, we lack jurisdiction. Haugh v.
Booker, 210 F.3d 1147, 1149 (10th Cir. 2000). Finally, we agree that the petition
should not be recharacterized as a petition for writ of habeas corpus. United
States v. Carpenter, 24 Fed. Appx. 899, 904 (10th Cir. Nov. 29, 2001).
Accordingly, Mr. Adkins has failed to show the existence of a nonfrivolous
argument on the law and facts in support of the issues raised on appeal.
We DENY Mr. Adkins’s motion to proceed IFP and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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