                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                     March 29, 2011
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                            __________________________                Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 10-5108
 v.                                           (D.Ct. No. 4:04-CR-00157-CVE-1)
                                                         (N.D. Okla.)
 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 court’s 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         This order and judgment is not binding precedent except under the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. Samuels’s 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 1193-

94. 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.

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      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. Samuels’s 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

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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. Samuels’s, 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 court’s 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 court’s 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 court’s 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. Samuels’s § 1651

petition for a writ of coram nobis even if his appeal was not frivolous.



      Because Mr. Samuels’s 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. Samuels’s appeal as frivolous.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




      1
        (...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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