FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 10, 2011
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 10-5111
SHAUNE COREY PAYNE,
Defendant - Appellant.
ORDER
Appellant’s petition for rehearing is granted for the limited purpose of
revising the order and judgment filed January 18, 2011, and replacing it with the
attached opinion.
The petition for rehearing en banc was transmitted to all of the judges of
the court who are in regular active service. As no member of the panel and no
judge in regular active service on the court requested that the court be polled, that
petition is denied.
Entered for the Court,
ELISABETH A. SHUMAKER, Clerk
FILED
United States Court of Appeals
Tenth Circuit
January 18, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 10-5111
SHAUNE COREY PAYNE,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. NO. 4:08-CR-00154-TCK-1) *
Shaune Corey Payne, pro se.
Leena Alam, Assistant United States Attorney, (Thomas Scott Woodward, United
States Attorney, Northern District of Oklahoma, with her on the brief), Tulsa,
Oklahoma, for Plaintiff - Appellee.
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
HARTZ, Circuit Judge.
*
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.
On a petition for rehearing by Defendant Shaune Corey Payne, we
withdraw our prior order and judgment filed on January 18, 2011, and substitute
the following:
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 he has failed to show that relief under 28 U.S.C. § 2255 was unavailable
or would have been inadequate.
I. BACKGROUND
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
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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
th[e] matter merit[ed] further investigation.” Id. at 21. Defendant filed a timely
notice of appeal.
II. DISCUSSION
Defendant argues that a writ of error coram nobis is available even to a
prisoner who is, like him, still in custody on the conviction he seeks to challenge.
See United States v. Dawes, 895 F.2d 1581, 1582 (10th Cir. 1990) (granting
coram nobis relief to petitioners in custody for the convictions they challenged).
But cf. United States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002) (“[A]
prisoner may not challenge a sentence or conviction for which he is currently in
custody through a writ of coram nobis.”).
But even if Defendant’s incarceration on the challenged conviction is not
an absolute bar to relief under a writ of error coram nobis, he is not entitled to
such relief unless relief under 28 U.S.C. § 2255 was unavailable or would have
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been inadequate. See Santos-Sanchez v. United States, 548 F.3d 327, 331
(5th Cir. 2008) (“[A writ of coram nobis] will issue only when no other remedy is
available . . . .” (internal quotation marks omitted)), vacated on other grounds,
130 S. Ct. 2340 (2010); Embrey v. United States, 240 F. App’x 791, 794 (10th
Cir. 2007) (unpublished) (“[T]he writ [of coram nobis] is only available when
other remedies and forms of relief are unavailable or inadequate.”); 1 3 Charles
Alan Wright & Sarah N. Welling, Federal Practice & Procedure § 624 at 652 (4th
ed. 2011) (“Coram nobis is unnecessary, and will not lie, if the defendant is in
custody and has a remedy available under § 2255.”); 28 James Wm. Moore,
Moore’s Federal Practice § 672.02[2][c] at 672-44 (3d ed. 2010) (“Coram nobis
relief is only available if the petitioner no longer satisfies the custody requirement
for seeking relief under section 2241 or 2255.”); 7 Wayne R. LaFave et al.,
Criminal Procedure § 28.9(a) at 282 (3d ed. 2007) (“the writ [of coram nobis] is
only an option if § 2255 or other relief is not available or adequate”).
Defendant has failed to offer any explanation why he could not have
pursued relief under § 2255. 2 It is irrelevant that a § 2255 motion would have
1
We cite to unpublished opinions only for their persuasive power.
2
In Dawes we appeared to hold that § 2255 relief was unavailable because
§ 2255 “provides only for vacation or correction of a sentence” and could not be
used to set aside a conviction. 895 F.2d at 1582. But insofar as Dawes held that
§ 2255 cannot be used to overturn a conviction, it is not good law and we overrule
it. Section 2255(a) may seem to support the view that § 2255 cannot be used to
attack a conviction because it merely permits a prisoner to “move the court which
(continued...)
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been untimely by the time he filed his petition for a writ of coram nobis. See
Sines v. Wilner, 609 F.3d 1070, 1073–74 (10th Cir. 2010) (§ 2255 is not
inadequate or ineffective merely because district court, perhaps incorrectly,
dismissed § 2255 motion as time-barred); Matus-Leva v. United States, 287 F.3d
758, 760–61 (9th Cir. 2002) (writ of error coram nobis requires that other
remedies be unavailable; § 2255 relief is not unavailable merely because it is
time-barred).
As for Defendant’s actual-innocence claim, even if a colorable claim of
actual innocence might be entitled to special treatment, his claim is not colorable.
See Schlup v. Delo, 513 U.S. 298, 324 (1995) (“To be credible, [a claim of actual
innocence] requires petitioner to support his allegations of constitutional error
with new reliable evidence—whether it be exculpatory scientific evidence,
2
(...continued)
imposed the sentence to vacate, set aside or correct the sentence.”
Section 2255(b), however, provides that if the court finds that “there has been
such a denial or infringement of the constitutional rights of the prisoner as to
render the judgment vulnerable to collateral attack, the court shall vacate and set
the judgment aside and shall discharge the prisoner or resentence him or grant a
new trial or correct the sentence as may appear appropriate.” Thus, “the term
‘sentence’ [in § 2255] has been regarded as a generic term including all of the
proceedings leading up to the sentence.” LaFave, supra, § 28.9(a) at 279. And,
despite the language in Dawes, this court has repeatedly and consistently applied
§ 2255 to challenges to convictions. As we recently said in Brace v. United
States, 634 F.3d 1167, 1169 (10th Cir. 2011), Ҥ 2255 will rarely be an
inadequate or ineffective remedy to challenge a conviction.”
We have circulated this footnote to the en banc court, which has
unanimously agreed that to the extent any of our earlier cases can be viewed as
inconsistent with our holding here, they are overruled.
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trustworthy eyewitness accounts, or critical physical evidence . . . .”). Defendant
states that he did not possess any drugs on the day of his arrest and that the police
planted the drugs that they found. His only new “evidence,” however, is the 2010
indictment of some law-enforcement officers in Tulsa because they planted drugs
on other suspects. But he does not allege that the officers involved in his case
were indicted, only that they had worked with the indicted officers.
III. CONCLUSION
We AFFIRM the district court’s denial of Defendant’s motion for a writ of
error coram nobis.
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