                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                      October 17, 2006
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court



    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,

    v.                                                   No. 05-6390
                                                   (D.C. No. 00-CV-387-C)
    DAVID RA Y GADDIS,                                   (W .D. Okla.)

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before HA RTZ, HOL LOW A Y, and BALDOCK , Circuit Judges.




         This case is before us on defendant-appellant David Gaddis’ appeal from

the district court’s order denying his motion for writ of error coram nobis and the

court’s denial of his motion to reconsider that order. M r. Gaddis was convicted

by a jury of nine criminal counts related to his activities in defrauding his




*
       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. This order and judgment 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not binding precedent, except under the doctrines of law of the case, res judicata,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
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
business partner Sears, Roebuck and Company, by submitting phony invoices for

installation services that were never performed. M r. Gaddis appealed his

conviction and, when his conviction was upheld by an order and judgment, see

United States v. Gaddis, 198 F.3d 259 (table), No. 98-6273, 1999 W L 824416

(10th Cir. Oct. 15, 1999), also filed a motion under 28 U.S.C. § 2255. His § 2255

motion was denied as was his appeal from that denial, see United States v.

Gaddis, 12 F. App’x 733 (10th Cir. 2001). 1

      Following his release from prison, M r. Gaddis filed his motion for a writ of

error coram nobis. In his motion M r. Gaddis argued that he should be granted

relief because his trial law yer had been ineffective for not arguing that his

contractual agreement with Sears allowed him to charge for installations that he

had not yet completed. He further argued that this ineffectiveness was proven by

a memorandum “prepared by a law firm which had been retained by Sears” that

“strongly tended to exculpate him.” Appellant’s Appendix at 31.

      The district court denied his motion on two grounds: (1) that M r. Gaddis

had not shown due diligence in filing his motion for a writ of error coram nobis

in that the only reason he gave for waiting almost two years after his release

from prison to file the motion was that he had been unable to find an attorney to

represent him, and (2) that he had argued that there was insufficient evidence to

1
      The full facts regarding M r. Gaddis’ case are set forth in the
above-referenced orders and judgments of this court and need not be repeated
here.

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support his conviction on direct appeal and in his § 2255 proceedings and that

coram nobis relief is not available to relitigate issues. The district court also

denied M r. Gaddis’ request for an evidentiary hearing on his claims and

subsequently denied his motion to reconsider which was in substance a motion to

alter or amend the judgment under Fed. R. Civ. P. 59(e).

      On appeal, M r. Gaddis argues that it was not a failure of due diligence to

wait two years to file his motion because he should not have been expected to file

the motion pro se. He further asserts that while it was previously argued that he

did not have the necessary intent to commit the crime for which he was charged,

his motion for coram nobis relief sought to argue that the invoices in question

were proper under the terms of the contract and, therefore, no crime was

committed. He also argues that it was therefore error for the district court not to

have held an evidentiary hearing.

      On appeal, we review factual findings for clear error, Blanton v. United

States, 94 F.3d 227, 230 (6th Cir. 1996), and questions of law de novo, United

States v. M andanici, 205 F.3d 519, 524 (2d Cir. 2000). W e review the district

court’s ultimate decision to deny the writ of error coram nobis for an abuse of

discretion. Id.

      Keeping the above standards foremost in mind, we have carefully reviewed

the parties’ briefs and appendices. For the reasons set forth in the district court’s

October 12, 2005, M emorandum Opinion and Order and the district court’s

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November 3, 2005, M emorandum Opinion and Order, we AFFIRM the denial of

M r. Gaddis’ motion for writ of error coram nobis and his motion to reconsider.


                                                   Entered for the Court



                                                   W illiam J. Holloway, Jr.
                                                   Circuit Judge




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