Davis v. Roberts

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
September 21, 2005
UNITED STATES COURT OF APPEALS
Clerk of Court
TENTH CIRCUIT

MARVIN B. DAVIS, JR.,

Petitioner - Appellant,
v. No. 04-3323
RAY ROBERTS; ATTORNEY
GENERAL OF THE STATE OF
KANSAS; KANSAS DEPARTMENT
OF CORRECTIONS,

Respondents - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 04-CV-3005-SAC)

Submitted on the brief *
:

Marvin B. Davis, Jr., pro se.

Before SEYMOUR , HARTZ , and McCONNELL , Circuit Judges.

HARTZ , Circuit Judge.

*
After examining the brief 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.
 Marvin B. Davis, a state prisoner appearing pro se and in forma pauperis,

seeks a certificate of appealability (COA) to appeal the denial of his application

for a writ of habeas corpus under 28 U.S.C. §§ 2241 and 2254. He also seeks to

appeal the denial of his motion for reconsideration and appeals the denial of a

writ of coram nobis under 28 U.S.C. § 1651. All claims derive from a challenge

to a prior sentence that he had fully served by the time he sought relief in federal

court. Exercising jurisdiction under 28 U.S.C. §§ 2253 and 1291, we deny a COA

with respect to his claims under §§ 2241 and 2254, and we affirm the denial of a

writ of coram nobis. Each of the three forms of relief sought by Mr. Davis is

clearly barred.

I. BACKGROUND

Mr. Davis’s claims concern two state sentences. In 1991 he pleaded guilty

to felony theft. He was sentenced to one to five years in prison but placed on

probation. In 1992 his probation was revoked, and he was imprisoned. In 1993

Kansas enacted a statute providing for sentencing guidelines. Kan. Stat. Ann.

§ 21-4724. According to Mr. Davis, the statute required that the Kansas

Department of Corrections (KDC) produce a report setting forth what his sentence

would be under the guidelines and that he then be resentenced under the

guidelines. See id. Mr. Davis challenges the execution of the 1991 sentence

because of the KDC’s failure to issue such a report, which, he contends, would

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have resulted in a shorter sentence. Mr. Davis completed his 1991 sentence on

December 22, 1996.

Mr. Davis was later convicted of aggravated burglary, aggravated

kidnapping, aggravated indecent liberties with a child, and domestic violence.

His sentence of 230 months’ imprisonment, imposed on April 17, 1997, was based

on a criminal history score of “G.” Mr. Davis contends that proper execution of

the 1991 sentence would have reduced that criminal history and thus shortened

the duration of the 1997 sentence, which he is currently serving.

Mr. Davis sought post-sentencing relief in Kansas state court under Kan.

Stat. Ann. § 60-1507. The state district court denied the petition. On appeal the

Kansas Court of Appeals dismissed the claim for lack of jurisdiction because

Mr. Davis had already completed his 1991 sentence. Davis v. Kansas, 77 P.3d

1288, 2003 WL 22283015, at *2 (Kan. Ct. App. 2003). The state supreme court

denied review.

On January 8, 2004, Mr. Davis filed in the United States District Court for

the District of Kansas a pleading on a form with the printed title “Petition for

Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a Person in State

Custody.” He wrote in “28 U.S.C. § 2241; 28 U.S.C. § 1651” after the printed

title. His pleading contended that (1) his first sentence was constitutionally

infirm because the state had not converted it under Kan. Stat. Ann. § 21-4724, and

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(2) this alleged error rendered unconstitutional the related enhancement to his

second sentence. The court dismissed his claims as barred by the one-year

limitations period under the Antiterrorism and Effective Death Penalty Act

(AEDPA), see 28 U.S.C. 2244(d)(1) & (2). It also found no circumstances

warranting the equitable tolling of the limitations period. See Burger v. Scott,

317 F.3d 1133, 1141-44 (10th Cir. 2003). The district court did not explicitly

address the applicability of either § 2241 or § 1651.

On January 21, 2004, Mr. Davis filed a motion for reconsideration, arguing

that the federal limitations period had not begun to run until he was hired as a

law-library research clerk in 2001 and discovered the alleged error in his first

sentence. Construing the pleading as a motion under Fed. R. Civ. P. 59(e), the

district court denied relief, noting that 28 U.S.C. § 2244(d)(1)(D) requires that a

prisoner exercise due diligence to discover the factual predicate of a habeas

claim.

Mr. Davis argues in this court that (1) a COA is not required for his § 2241

petition; (2) the district court should not have sua sponte recharacterized his

claims as a § 2254 application; (3) § 2241 is not subject to the one-year

limitations period under AEDPA when the factual predicate underlying the claim

was discovered years later; (4) an expired conviction may be challenged under

§ 2241 when the conviction was the result of ineffective assistance of counsel or

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there is no review available through no fault of the petitioner; and (5) the district

court has jurisdiction under 28 U.S.C. § 1651(a) to issue a writ of coram nobis to

correct an expired conviction even though the convict is no longer in custody on

that conviction.

II. DISCUSSION

A. Characterization of Mr. Davis’s Claims

At the outset we need to determine what avenues of relief Mr. Davis is

pursuing. First, a challenge to the execution of a sentence should be brought

under 28 U.S.C. § 2241. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)

(“A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather

than its validity . . . .”). Thus, this is the provision that would ordinarily apply to

Mr. Davis’s challenge to the failure to convert his 1991 sentence to a lesser term

after enactment of Kan. Stat. Ann. § 21-4724. Second, to the extent that

Mr. Davis contends that his present sentence is unlawful (because it was

influenced by the improper execution of his 1991 sentence), the claim should be

brought under 28 U.S.C. § 2254. Montez v. McKinna, 208 F.3d 862, 865 (10th

Cir. 2000) (a challenge to the validity of a conviction and sentence is properly

brought under § 2254). Third, he seeks relief concerning a sentence he has

already served (the 1991 sentence) by bringing a petition for a writ of coram

nobis under 28 U.S.C. § 1651(a). Cf. United States v. Torres, 282 F.3d 1241,

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1245 n.6 (10th Cir. 2002) (noting availability of coram nobis relief for federal

convictions). As we shall explain, all three forms of relief are barred.

B. § 2241 Relief

Contrary to Mr. Davis’s first assertion, “a state prisoner must obtain a COA

to appeal the denial of a habeas petition, whether such petition was filed pursuant

to § 2254 or § 2241, whenever ‘the detention complained of [in the petition]

arises out of process issued by a State court.’” Montez, 208 F.3d at 867 (quoting

28 U.S.C. § 2253(c)(1)(A)). Mr. Davis’s initial confinement is a “matter[]

flowing from a state court detention order.” Id. at 869. We therefore consider

whether Mr. Davis is entitled to a COA on his § 2241 claim. See id. at 867-69.

Section 2253(c)(2) states: “A certificate of appealability may issue . . .

only if the applicant has made a substantial showing of the denial of a

constitutional right.” Although the statutory language does not address a district

court denial of habeas relief on procedural grounds, the Supreme Court has said:

When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional
claim, a COA should issue when the prisoner shows, 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). It follows that “[w]here a plain

procedural bar is present and the district court is correct to invoke it to dispose of

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the case, a reasonable jurist could not conclude either that the district court erred

in dismissing the petition or that the petitioner should be allowed to proceed

further. In such a circumstance, no appeal would be warranted.” Id.

The Supreme Court did not discuss what the proper course would be when

there is a “plain procedural bar” that the district court did not invoke. But the

answer seems clear. In general, “[w]e have discretion to affirm on any ground

adequately supported by the record.” Elkins v. Comfort, 392 F.3d 1159, 1162

(10th Cir. 2004). No reason suggests itself why this principle should be rejected

in considering an application for a COA. Accordingly, we may deny a COA if

there is a plain procedural bar to habeas relief, even though the district court did

not rely on that bar.

Here, there is a plain procedural bar to Mr. Davis’s § 2241 claim. The

issue is a pure matter of law, and there is nothing unfair in resolving the claim on

this basis. See id. (factors to be considered in determining whether to affirm on

ground not relied on by district court include whether issue has been briefed,

whether there was opportunity to develop factual record, and whether issue is

solely question of law). “The federal habeas statute gives the United States

district courts jurisdiction to entertain petitions for habeas relief only from

persons who are ‘in custody in violation of the Constitution or laws or treaties of

the United States.’” Maleng v. Cook, 490 U.S. 488, 490 (1989) (quoting 28

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U.S.C. § 2241(c)(3) and citing 28 U.S.C. § 2254(a)). A habeas petitioner does not

remain “‘in custody’ under a conviction after the sentence imposed for it has fully

expired, merely because of the possibility that the prior conviction will be used to

enhance the sentences imposed for any subsequent crimes of which he is

convicted.” 490 U.S. at 492. To the extent that Mr. Davis raises a claim

challenging the execution of his 1991 sentence, the district court lacked

jurisdiction to hear the claim because he was no longer in custody under that

sentence when he filed for relief in that court. Therefore, dismissal of Mr. Davis’s

§ 2241 claim was clearly correct and we deny a COA on that claim.

C. § 2254 Claim

To the extent that Mr. Davis is challenging the validity or legality of the

sentence he is currently serving, his claim should be brought under § 2254.

Montez, 208 F.3d at 864; Bradshaw, 86 F.3d at 166. He complains, however, that

he did not invoke § 2254 and that the district court improperly recharacterized his

claim as proceeding under that section. We recognize that even if his claim

should have been brought under § 2254, he may prefer to have his claim

dismissed rather than be recharacterized as a § 2254 claim because of the

potential consequences with respect to any § 2254 claim he may file in the future.

AEDPA places strict limitations on second or successive claims. See 28 U.S.C.

§§ 2244(b), 2255. As a result, a district court must follow certain procedures

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before recharacterizing pro se pleadings as claims under §§ 2254 or 2255. In the

context of § 2255 the Supreme Court has stated:

[T]he district court must notify the pro se litigant that it intends to
recharacterize the pleading, warn the litigant that this
recharacterization means that any subsequent § 2255 motion will be
subject to the restrictions on “second or successive” motions, and
provide the litigant an opportunity to withdraw the motion or to
amend it so that it contains all the § 2255 claims he believes he has.

Castro v. United States, 540 U.S. 375, 383 (2003); accord United States v. Kelly,

235 F.3d 1238, 1242 (10th Cir. 2000) (recharacterization as § 2255 motion); see

Martin v. Overton, 391 F.3d 710, 713 (6th Cir. 2004) (recharacterization as

§ 2254 application).

But here there was no recharacterization by the district court. Mr. Davis’s

initial pleading in federal district court was on a form describing the pleading as a

“Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a Person in

State Custody.” He inserted “28 U.S.C. § 2241; 28 U.S.C. § 1651” after this

printed language but he did not cross out the printed language. Even more telling,

in his January 21, 2004, motion Mr. Davis claimed relief under “28 U.S.C.

§§ 2241, 2254, [and] 1651” and referenced § 2254 throughout his pleading. Thus,

Mr. Davis plainly intended to bring a § 2254 claim.

Turning to the substance of the § 2254 claim, it was not cognizable in

district court. In Lackawanna County District Attorney v. Coss, 532 U.S. 394

(2001), the Supreme Court addressed whether a current sentence enhanced by a

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prior allegedly unconstitutional expired sentence may be challenged under § 2254.

Although it held that a prisoner serving such an enhanced sentence was “in

custody,” the Court said:

[O]nce a state conviction is no longer open to direct or collateral
attack in its own right because the defendant failed to pursue those
remedies while they were available (or because the defendant did so
unsuccessfully), the conviction may be regarded as conclusively
valid. If that conviction is later used to enhance a criminal sentence,
the defendant generally may not challenge the enhanced sentence
through a petition under § 2254 on the ground that the prior
conviction was unconstitutionally obtained.

532 U.S. at 403-04 (internal citation omitted). “The only exceptions [to this

general rule] exist when: 1) counsel is not appointed in violation of the Sixth

Amendment; or 2) no channel of review is available through no fault of the

petitioner.” Broomes v. Ashcroft, 358 F.3d 1251, 1254 (10th Cir. 2004). In

particular, prisoners are not entitled to an exception on the ground that their

counsel provided inadequate representation. Lackawanna, 532 U.S. 394 (no

§ 2254 remedy for ineffective assistance of counsel with respect to prior

conviction).

Neither exception applies here. Mr. Davis does not claim that counsel was

not appointed in the prior proceeding, only that his counsel was ineffective. Nor

was he faultless in failing to obtain timely review of his constitutional claims.

Although he explains that he did not discover the error with respect to his first

sentence until he became a law-library research clerk in 2001, he failed to

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exercise due diligence in challenging the alleged error in his 1991 sentence.

“[I]gnorance of the law, even for an incarcerated pro se petitioner, generally does

not excuse prompt filing.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.

2000) (internal quotation marks omitted). Accordingly, the § 2254 claim was

properly dismissed, and we deny a COA.

D. Coram Nobis Claim

Finally, we reject Mr. Davis’s petition for a writ of coram nobis under 28

U.S.C. § 1651. It has long been settled in this circuit that federal courts have no

jurisdiction to issue writs of coram nobis with respect to state criminal judgments.

See Rivenburgh v. Utah, 299 F.2d 842, 843 (10th Cir. 1962); see also Obado v.

New Jersey, 328 F.3d 716, 718 (3d Cir. 2003) (joining the Fourth, Fifth, Seventh,

and Tenth Circuits in holding “that coram nobis is not available in a federal court

as a means of attack on a state criminal judgment”); Larry W. Yackle,

Postconviction Remedies § 35, at 162 (1981) (“[T]he writ [of coram nobis] is

available only in the sentencing court to petitioners challenging federal

convictions and sentences.”).

E. Motion to Reconsider

Mr. Davis’s motion to reconsider in district court raised no issues that

survive the procedural grounds for rejection discussed above.

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III. CONCLUSION

With respect to Mr. Davis’s claims under 28 U.S.C. §§ 2241 and 2254,

dismissal was undoubtedly correct and we DENY a COA. With respect to his

claims under 28 U.S.C. § 1651, we AFFIRM the judgment below.

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