United States v. McDaniel , 192 F. App'x 805 ( 2006 )

F IL E D
United States Court of Appeals
Tenth Circuit
U N IT E D ST A T E S C O U R T O F A PP E A L S
August 23, 2006
T E N T H C IR C U IT
Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-6150
(D.C. No. CR-99-2-L)
TRENTON M cDA NIEL, (W .D. Okla.)
Defendant-Appellant.
O R D E R A N D JU D G M E N T *
Before K E L L Y , M cK A Y , and L U C E R O , Circuit Judges.
This case is before us on direct appeal of the district court’s denials of
Trenton M cDaniel’s petition for a writ of coram nobis and m otion to
recharacterize proceedings, through which M cDaniel seeks to attack his crim inal
conviction and sentence. M cD aniel now appeals, seeking to proceed in form a
pauperis (“IFP”). W e G R A N T his m otion to proceed IFP, and address his
petition on the m erits. For substantially the same reasons set forth by the district
*
The case is unanim ously ordered subm itted without oral argum ent pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgm ent 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not binding precedent, except under the doctrines of law of the case, res judicata,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
judgm ents; nevertheless, an order and judgm ent m ay be cited under the term s and
conditions of 10th Cir. R. 36.3.
court, we A FFIR M the denial of both M cDaniel’s petition for a writ of coram
nobis and his motion for recharacterization.
Pursuant to a plea agreement, M cDaniel pled guilty to one count of
distribution of crack cocaine in exchange for dism issal of the remaining four
counts against him. On M ay 27, 1999, M cDaniel was sentenced to 216 m onths’
incarceration. There was no direct appeal of his conviction or sentence.
However, M cDaniel filed his petition for a writ of coram nobis on October 24,
2005. On Novem ber 15, 2005, M cDaniel filed a m otion to recharacterize his
coram nobis petition as a “Habeas corpus type petition for post-conviction relief.”
Relying on United States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002), which
held that a prisoner may not challenge a sentence or conviction for w hich he is
currently in custody through a w rit of coram nobis, the court denied M cD aniel’s
request for a writ of coram nobis. Additionally, the court declined to
recharacterize his petition as a 28 U.S.C. § 2255 habeas petition because such a
claim would be barred by the statute of limitations. The district court also denied
M cD aniel a certificate of appealability (“COA”) “to the extent that defendant’s
action could be characterized as a motion pursuant to 28 U.S.C. § 2255.”
On appeal of a denial of a writ of coram nobis, we review de novo the
question of whether a district court applied the proper legal standard, and review
the ultimate decision to deny the writ for an abuse of discretion. See United
-2-
States v. M andanici, 205 F.3d 519, 524 (2d Cir. 2000). Because M cDaniel is in
the custody of the Bureau of Prisons serving his federal sentence, he may not
challenge his conviction or sentence through a writ of coram nobis. Therefore,
the district court’s denial of such a writ is affirmed. See Torres, 282 F.3d at
1245.
The district court also declined to recharacterize M cDaniel’s coram nobis
petition as a § 2255 petition. W e have generally disfavored such
recharacterization for pro se prisoners because of our concern that construing a
motion as a § 2255 petition would lead courts to bar subsequent habeas petitions
as successive. See United States v. Kelly, 235 F.3d 1238, 1242 (10th Cir. 2000).
W e have required that district courts inform pro se prisoners of the potential
adverse consequences of such a recharacterization and give them the opportunity
to withdraw their motion. Id. In this case, the district court declined to
recharacterize M cDaniel’s petition on the basis that even if his petition had been
recharacterized, it would have been barred by § 2255’s one-year statute of
limitations. 1 M cDaniel filed his motion more than six years after his conviction
became final.
1
M cDaniel’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective D eath Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. M urphy, 521 U.S. 320 (1997)).
-3-
Four of the five claims in M cDaniel’s petition for a writ of coram nobis
were based on issues which should have been raised on direct appeal.
Accordingly, M cDaniel must show cause for not raising these issues on direct
appeal and actual prejudice resulting from the errors alleged, or must show that a
fundamental miscarriage of justice would result if his claim is not addressed.
United States v. Riddick, 104 F.3d 1239 (10th Cir. 1997). He makes no such
showing. In his final claim, M cDaniel contends his sentencing violated Blakely
v. W ashington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220(2005). W e have held that neither case applies retroactively to cases that became
final prior to their issuance, such as M cDaniel’s. United States v. Bellamy, 411
F.3d 1182, 1184 (10th Cir. 2005); United States v. Price, 400 F.3d 844, 849 (10th
Cir. 2005). W e discern no error in the district court’s decision not to
recharacterize M cDaniel’s motion as a § 2255 petition which would have
inevitably failed. Accordingly, we A FFIR M the district court’s denial of the writ
of coram nobis, and its decision not to recharacterize M cDaniel’s petition as a
motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a
person in federal custody.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
-4-