Richard Lay v. Robert Tanner

Case: 13-30708 Document: 00512640958 Page: 1 Date Filed: 05/23/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-30708 FILED
Summary Calendar May 23, 2014
Lyle W. Cayce
Clerk
RICHARD LAY,
Petitioner-Appellant
v.
ROBERT TANNER, Warden,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:10-CV-4162
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
Richard Lay, Louisiana prisoner # 110315, appeals the district court’s
denial of his motion for a writ of error coram nobis. He sets forth arguments
regarding the claims that he raised in his 28 U.S.C. § 2254 application, which
was denied in 2011, and in various postjudgment motions in which he sought
reconsideration of the denial of that application.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 13-30708
While the district court did not address its jurisdiction, we must consider
the basis of the district court’s jurisdiction sua sponte if necessary. See
Bridgmon v. Array Systems Corp., 325 F.3d 572, 575 (5th Cir. 2003). Because
Lay still is in custody and seeks to attack a state conviction, he was not entitled
to relief through a motion for a writ of error coram nobis. See Jimenez v.
Trominski, 91 F.3d 767, 768 (5th Cir. 1996); Sinclair v. Louisiana, 679 F.2d
513, 514 (5th Cir. 1982). Instead, given that Lay’s motion attacked his
confinement pursuant to a state court judgment, the district court should have
treated his motion as a § 2254 application. See § 2254; Gonzalez v. Crosby, 545
U.S. 524, 531-32 (2005). However, the district court lacked jurisdiction to do
so because Lay previously filed a § 2254 application, and we did not authorize
the filing of a successive § 2254 application. 28 U.S.C. § 2244(b)(3)(A); United
States v. Key, 205 F.3d 773, 774 (5th Cir. 2000).
The district court’s judgment is affirmed on the alternative basis that
the district court lacked jurisdiction. See United States v. Early, 27 F.3d 140,
142 (5th Cir. 1994). Lay’s motions for leave to amend his reply brief, for the
appointment of counsel, and to supplement the record on appeal are denied.
We previously warned Lay that the filing of repetitious or frivolous
motions would invite the imposition of sanctions. See Lay v. Tanner, No. 12-
30753, slip. op. at 2 (5th Cir. Feb. 1, 2013). Further, we previously imposed
sanctions in unrelated cases. Lay’s appeal shows that he has failed to heed our
warning and that the prior sanctions were insufficient to deter Lay from
frivolous filings. Therefore, Lay is ordered to pay a sanction in the amount of
$200 to the Clerk of this Court. He is barred from filing in this court or in any
court subject to this court’s jurisdiction any challenge to his conviction or
sentence until the sanction is paid in full, unless he first obtains leave of the
court in which he seeks to file such challenge. Lay is also cautioned that filing
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Case: 13-30708 Document: 00512640958 Page: 3 Date Filed: 05/23/2014
No. 13-30708
any future frivolous or repetitive challenges to his conviction or sentence in
this court or any court subject to this court’s jurisdiction will subject him to
additional and progressively more severe sanctions.
AFFIRMED; MOTIONS DENIED; SANCTION IMPOSED; SANCTION
WARNING ISSUED.
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