United States v. Samuels, JR., 10th Cir. (2011)

FILED
United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
__________________________
March 29, 2011

Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 10-5108
(D.Ct. No. 4:04-CR-00157-CVE-1)
(N.D. Okla.)
v.
LAWRENCE SAMUELS, JR.,
Defendant-Appellant.
____________________________
ORDER AND JUDGMENT *
Before BARRETT, ANDERSON, and BRORBY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
Appellant Lawrence Samuels, Jr., a pro se litigant and federal inmate,

appeals the district courts dismissal of his petition for a writ of coram nobis,
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
pursuant to 28 U.S.C. 1651, which seeks to vacate his conviction and sentence.
We dismiss Mr. Samuelss appeal as frivolous.
I. Factual and Procedural Background

On October 5, 2004, a grand jury issued an indictment charging Mr.
Samuels with possession of cocaine base (crack cocaine) with intent to distribute
under 21 U.S.C. 841(a)(1). On April 18, 2005, Mr. Samuels pled guilty and
received a sentence of 210 months in prison. He later appealed his conviction and
sentence, arguing the district court erred in denying his motion to suppress
evidence and on ineffective assistance of counsel grounds. See United States v.
Samuels, 493 F.3d 1187, 1188 (10th Cir. 2007). We affirmed the denial of the
motion to suppress and declined to address his ineffective assistance of counsel
claims because the record failed to completely develop those issues. Id. at 119394. We noted the better avenue for making such claims was a collateral
proceeding where the whole record would allow appropriate review. Id.
Thereafter, Mr. Samuels filed a collateral pleading i.e., a motion to

vacate, set aside, or correct his sentence based on his ineffective assistance
claims. On November 6, 2009, the district court denied his motion, concluding
counsel did not act ineffectively in representing Mr. Samuels. Mr. Samuels did
not appeal.
-2-
Turning to the litigation involved in this appeal, on August 25, 2010, Mr.
Samuels filed a Motion for Writ of Error Coram Nobis requesting his
conviction and sentence be vacated based on his claim of innocence and the fact
that Brandon McFadden, a former special agent with the ATF, and two Tulsa
police officers planted the cocaine they found in his vehicle. In support of this
claim, he explained Mr. McFadden was later indicted for planting drugs in other
cases. He also claimed the cocaine found in his car should have been suppressed
based on the same grounds previously raised in his direct appeal to this court.
The district court denied Mr. Samuelss petition, explaining the issuance of
a writ of coram nobis under 28 U.S.C. 1651 is an extraordinary remedy allowed
only under compelling circumstances when 2255 motions or other forms of
relief are not available. It further explained such a writ is generally only used
when the petitioner has served his sentence completely and is no longer in
custody as required for 2255 relief. It also explained that because he remained
in custody the proper action for challenging his sentence remained under 2255,
and not a common law writ. It further denied his motion for appointment of
counsel in connection with his petition.
Mr. Samuels then filed a motion in this court seeking authorization to file a
second or successive 28 U.S.C. 2255 motion on the same grounds as set forth in
-3-
his coram nobis petition. On November 5, 2010, we denied his motion,

concluding, in part, that while Mr. McFadden provided false testimony in criminal
cases in 2007 and 2008, Mr. Samuels failed to provide any evidence or
information: (1) Mr. McFadden committed any such action in his case or in
cases, like Mr. Samuelss, which occurred prior to 2007; (2) the other two police
officers, who also discovered the crack cocaine in his vehicle, were involved in
planting such evidence; or (3) why he pled guilty and never previously claimed
his innocence or that the drugs had been planted.
II. Discussion
Mr. Samuels now appeals the district courts denial of his petition for a
writ of coram nobis under 28 U.S.C. 1651. In identifying the issues on appeal,
he claims the district court should have allowed him to pursue his claims against
the two police officers and Mr. McFadden in light of the minimal evidence made
available to [him] in prison, and directed a response and discovery from the
[g]overnment, including phone records of one of the officers who claimed to
have received a tip from a confidential informant that Mr. Samuels possessed
drugs. In essence, Mr. Samuels is arguing on appeal the same or similar
contentions he raised and we rejected in his direct appeal regarding his motion to
suppress. See Samuels, 493 F.3d at 1188-90. He also suggests the district court
should have granted his request for a writ of coram nobis, given Mr. McFadden
-4-
and the others planted the drugs in his vehicle an issue we fully disposed of in
our November 2010 order concerning his request to file a second or successive
2255 motion. The government has filed notice of its intention not to file a brief
in the instant appeal.
Generally, we review de novo the district courts denial of a petition for a

writ of coram nobis filed under 28 U.S.C. 1651 and its factual findings for clear
error. See Klein v. United States, 880 F.2d 250, 255-56 & n.6 (10th Cir. 1989).
As the district court held, a writ of coram nobis is an extraordinary writ because it
extends litigation beyond the final judgment and exhaustion of other remedies.
Id. at 253. Such a writ is used to attack allegedly invalid convictions which have
continuing consequences, when the petitioner has served his sentence and is no
longer in custody for purposes of 28 U.S.C. 2255. United States v.
Stoneman, 870 F.2d 102, 105-06 (3d Cir. 1989) (relying on United States v.
Morgan, 346 U.S. 502, 512-13 (1954)). It may be used only to correct error
resulting in a complete miscarriage of justice. See United States v. Williamson,
806 F.2d 216, 222 (10th Cir. 1986).
While these are the general principles we apply in coram nobis cases, it is
apparent Mr. Samuels filed the instant appeal in an effort to skirt our prior
dispositive decisions affirming the district courts denial of his motion to suppress
-5-
evidence in his direct appeal and denying him authorization to file a second or
successive 2255 motion, in which we considered and rejected the very same
claims he raises here. As a result, this appeal is plainly frivolous. Even if we
considered his appeal, Mr. Samuels is still serving his 210-month sentence, and
thus, he is still in custody and has not served his sentence, which is a
prerequisite for allowing one to petition for such a writ. Accordingly, we would
readily conclude the district court did not err in denying Mr. Samuelss 1651
petition for a writ of coram nobis even if his appeal was not frivolous.
Because Mr. Samuelss appeal is frivolous, we will not expend further

judicial resources considering it or matters which have either previously been
adjudicated or otherwise deemed meritless. We caution Mr. Samuels that future
frivolous appeals on this or any other matter may result in summary disposition
without discussion and/or an order requiring him to show cause why this court
should not impose both appellate filing restrictions and sanctions. 1 We further
1
The right of access to the courts is neither absolute nor unconditional,

and there is no constitutional right of access to the courts to prosecute an action
that is frivolous or malicious. Winslow v. Hunter (In re Winslow), 17 F.3d 314,
315 (10th Cir. 1994) (per curiam) (quotation marks and alteration omitted). We
possess inherent authority to regulate the activities of abusive litigants by
imposing carefully tailored restrictions under the appropriate circumstances.
Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989) (per curiam). We have
long held that where a party has engaged in a pattern of litigation activity which
is manifestly abusive, restrictions are appropriate, but only after notice and an
opportunity to respond are given. See Werner v. Utah, 32 F.3d 1446, 1447-48
(continued...)
-6-
caution Mr. Samuels the fact he is a pro se litigant does not prohibit the court
from imposing such sanctions against him. See Haworth v. Royal, 347 F.3d 1189,
1192 (10th Cir. 2003).
III. Conclusion
For the foregoing reasons, we DISMISS Mr. Samuelss appeal as frivolous.
Entered by the Court:

WADE BRORBY
United States Circuit Judge
(...continued)
(10th Cir. 1994); In re Winslow, 17 F.3d at 315. We may impose filing
restrictions based on our inherent power to regulate federal dockets, promote
judicial efficiency, and deter frivolous filings. See Van Sickle v. Holloway, 791
F.2d 1431, 1437 (10th Cir. 1986). Moreover, Rule 38 of the Federal Rules of
Appellate Procedure allows this court to award damages as a sanction for a
frivolous appeal.
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United States v. Samuels, JR., 10th Cir. (2011)

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FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

March 29, 2011

UNITED STATES OF AMERICA,

Before BARRETT, ANDERSON, and BRORBY, Circuit Judges.

Appellant Lawrence Samuels, Jr., a pro se litigant and federal inmate,

I. Factual and Procedural Background

Thereafter, Mr. Samuels filed a collateral pleading i.e., a motion to

his coram nobis petition. On November 5, 2010, we denied his motion,

Generally, we review de novo the district courts denial of a petition for a

Because Mr. Samuelss appeal is frivolous, we will not expend further

The right of access to the courts is neither absolute nor unconditional,

Entered by the Court:

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