                                                                          FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 12, 2009
                     UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                  Clerk of Court




    In re:

    DAVID LEE SMITH,                                     No. 08-1323
                                                      (D.C. No. 96-DP-4)
                Appellant.                                (D. Colo.)


                             ORDER AND JUDGMENT *


Before O’BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and
GORSUCH, Circuit Judge.



         David Lee Smith appeals from an order denying his petition for

reinstatement to the bar of the United States District Court for the District of

Colorado. He also appeals orders denying his motion to alter or amend and his

petition for relief from the district court’s rule of good standing. He argues that

the district court’s three-judge Disciplinary Panel abused its discretion by denying

him reinstatement to the district court bar; that the Disciplinary Panel denied him



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
due process by refusing to disclose items from the record; that then Chief Judge

Nottingham should have recused himself pursuant to 28 U.S.C. § 455(a) and (b);

and that the Disciplinary Panel erred in denying his petition for relief from the

rule of good standing. We have jurisdiction to review these orders, see In re

Martin, 400 F.3d 836, 840 (10th Cir. 2005), and we affirm.

      On November 29, 1993, we suspended Mr. Smith from practicing law

before this court. In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (per curiam),

cert. denied, 513 U.S. 807 (1994). And on February 13, 1996, we converted that

suspension to a disbarment because Mr. Smith continued to practice before this

court despite his suspension. In re Smith, 76 F.3d 335, 336 (10th Cir. 1996) (per

curiam), cert. denied, 519 U.S. 871 (1996). Based on our disbarment, the

Colorado district court disbarred Mr. Smith on April 26, 1996, and the Colorado

Supreme Court disbarred him on October 14, 1999, In re Smith, 989 P.2d 165

(Colo. 1999) (per curiam).

      On May 4, 2007, we granted Mr. Smith’s motion for reinstatement to

practice before this court, provided that he meet certain conditions. In re Smith,

No. 93-631, 2007 WL 4953041 (10th Cir. May 4, 2007). Mr. Smith met these

conditions. Based on his May 17, 2007, reinstatement, he then applied for

reinstatement to the bar of the Colorado district court. 1 The district court’s


1
       The Fifth Circuit and the Northern District of Texas reinstated Mr. Smith to
practice before those courts based on our order of reinstatement.

                                          -2-
three-judge Disciplinary Panel denied reinstatement based on the recommendation

of the Committee on Conduct and on the Panel’s independent review, because

Mr. Smith remained disbarred by the Colorado Supreme Court. The Panel

reasoned that under the district court’s local rules, “an attorney admitted to the

[district court] bar . . . must remain in good standing in all courts where admitted;

that the status of good standing means not being subject to suspension or

disbarment by any court for any reason; and that an attorney not in good standing

is not to practice before [the district] court. D.C.Colo.L.Civ.R. 83.3E and

D.C.Colo.L.Cr.R. 57.5E.” Aplt. App. at 7 (Order Denying Restatement).

      Mr. Smith then filed a motion to alter or amend the judgment, asserting that

the Disciplinary Panel’s interpretation of the local rules deprived him of

substantive and/or procedural due process since the Tenth Circuit had reinstated

him and the Colorado Supreme Court’s continued disbarment was improper in

light of the Tenth Circuit’s reinstatement. Additionally, he criticized the

Colorado Supreme Court for failing to hold a due process hearing before

imposing reciprocal discipline. The Disciplinary Panel denied Mr. Smith’s

motion.

      Subsequently, Mr. Smith filed a petition for relief from the rule of good

standing on the grounds that (1) the Colorado Supreme Court’s reciprocal

discipline denied him due process because that court’s Hearing Board did not hear

evidence concerning the reciprocal discipline charges; and (2) failure to reinstate

                                          -3-
him would be a grave injustice since the Tenth Circuit had readmitted him. The

Disciplinary Panel reviewed the recommendation of the Committee on Conduct

and the disciplinary file and denied the petition, finding that Mr. Smith failed to

offer clear and convincing evidence to support his petition and that the petition

was merely an attempt to circumvent the Disciplinary Panel’s prior two orders

denying reinstatement. The Disciplinary Committee reiterated that Mr. Smith

remained disbarred by the Colorado Supreme Court.

       Mr. Smith appeals from all three of the Disciplinary Panel’s orders denying

him readmission to the Colorado district court bar. We review the denial of

reinstatement under the abuse of discretion standard. See Martin, 400 F.3d at

841. Our review of legal issues, however, is plenary. See id.

       Mr. Smith first argues that he was not given notice that the Disciplinary

Panel would apply the rule of good standing, see D.C. Colo. L. Civ. R. 83.3E and

D.C. Colo. L. Cr. R. 57.5E, when assessing his petition for reinstatement to the

district court’s bar. To the contrary, the form application for reinstatement that

Mr. Smith submitted to the district court begins with the very notification that the

good-standing rules apply. Aplt. App. at 14. Those rules, as relevant here, state

that

       [a]n attorney admitted to the bar of this court must remain in good
       standing in all courts where admitted. “In good standing” means not
       subject to suspension or disbarment by any court for any reason. An
       attorney who is not in good standing shall not practice before the bar
       of this court . . . .

                                          -4-
D.C. Colo. L. Civ. R. 83.3E; D.C. Colo. L. Cr. R. 57.5E. Additionally, the form

cited to Local Rules 83.5I and 57.7I in its title and twice in its body. Aplt. App.

at 14-15. These rules state that:

      An attorney applying for reinstatement or readmission to this court
      following reinstatement or readmission by the original disciplining
      court who remains . . . disbarred in a court other than the original
      disciplining court or this court is subject to D.C.COLO.LCivR 83.3E
      and D.C.COLO.LCrR 57.5E requiring attorneys to be in good
      standing where admitted in order to be or remain admitted to the bar
      of this court. An attorney . . . disbarred automatically in a court
      other than the original disciplining court or this court as a result of
      . . . disbarment by the original disciplining court may petition this
      court for relief from the rule of good standing pursuant to
      D.C.COLO.LCivR 83.3F or D.C.COLO.LCrR 57.5F, stating
      appropriate grounds for relief.

Mr. Smith certified in the reinstatement application that he had read and was

familiar with these local rules. Aplt. App. at 15.

      Without question, “the federal district court has a right to establish its own

standards for admission to practice.” Mattox v. Disciplinary Panel of U.S. Dist.

Ct. for Dist. of Colo., 758 F.2d 1362, 1364 (10th Cir. 1985); see also Chambers v.

NASCO, Inc., 501 U.S. 32, 43 (1991) (deciding district court has inherent

authority to control admission to its bar). The Disciplinary Panel adhered to the

court’s own rules in denying Mr. Smith readmission. See Mattox, 758 F.2d at

1364 (stating that proper question on appeal is “whether the district court has

adhered to its own rules”). Mr. Smith has not been reinstated to the Colorado

Supreme Court and his membership in that bar is required before he can be


                                          -5-
reinstated to the district court’s bar. The district court therefore did not abuse its

discretion in denying his petition for reinstatement. Cf. In re Kandekore,

460 F.3d 276, 280 (2d Cir. 2006) (per curiam) (holding “that the district court

could properly deny [attorney’s] readmission on the ground that he had not been

readmitted to the bar of the state of New York”). Nor did the district court abuse

its discretion in denying his motion to alter or amend the judgment.

      Mr. Smith next argues that he was denied his Fifth Amendment right to due

process because the Disciplinary Panel either erred in refusing to disclose items

from the record on appeal, including the Committee on Conduct’s

recommendation on his application for reinstatement and the underlying

documentation, or erred in refusing to supplement the record on appeal with the

omitted items. Mr. Smith’s argument is conclusory, and he cites no authority

requiring the Disciplinary Panel to disclose these items. Because this issue is not




                                          -6-
adequately briefed, we deem it waived. 2 See Utahns for Better Transp. v. U.S.

Dep’t of Transp., 305 F.3d 1152, 1175 (10th Cir. 2002).

      Mr. Smith also argues that former Chief Judge Nottingham should have

disqualified himself from the Disciplinary Panel under 28 U.S.C. § 455(a) and (b)

due to his bias against Mr. Smith. Mr. Smith, however, never asserted a bias

argument before the Disciplinary Panel. Thus, this argument is waived. See

Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc., 413 F.3d 1163, 1167

(10th Cir. 2005).

      Even if we considered this argument, we would conclude that Mr. Smith

did not show bias. Contrary to Mr. Smith’s contention, the judge’s sanctioning

him during prior district court proceedings and reciprocally disbarring him

without holding a due process hearing on the reciprocal discipline charges are

insufficient to suggest partiality requiring recusal. These bias accusations are


2
      Mr. Smith’s total discussion of the issue consists of the following:

      The Disciplinary Panel also abused its discretion and/or committed
      reversible error by refusing to disclose items omitted from the record
      on appeal, including but not limited to, the recommendation of the
      Committee on Conduct on Smith’s Application for reinstatement to
      the District Court’s bar, as well as the underlying documentation, or
      to supplement the record on appeal with the omitted items, which
      were necessary for Smith to be able to prepare and submit his brief
      and appendix on appeal. Therefore, in the absence of the omitted
      items, Smith was deprived of his Fifth Amendment right to due
      process of law.

Aplt. Br. at 11 (footnote citing to appendix omitted).

                                         -7-
grounded primarily in prior judicial rulings against Mr. Smith, which almost

never show partiality requiring a judge’s recusal. See Liteky v. United States,

510 U.S. 540, 555 (1994). Also, Mr. Smith contends that former Chief Judge

Nottingham’s bias tainted the proceedings making it impossible for Mr. Smith to

receive a fair and impartial decision on his application for reinstatement. This

contention is wholly conclusory and therefore deemed waived. See Utahns for

Better Transp., 305 F.3d at 1175. In any event, there were two other judges on

the Disciplinary Panel deciding whether to reinstate Mr. Smith, Mr. Smith does

not argue that either of those judges was biased, and the Panel’s decision against

reinstatement was unanimous.

      Lastly, Mr. Smith argues that he presented clear and convincing evidence

that the Disciplinary Panel should have granted his petition for relief from the

rule of good standing and that he was not merely attempting to circumvent the

Disciplinary Panel’s two prior orders denying reinstatement. To support his

argument, he merely quotes from his petition. But the quote does not address the

Disciplinary Panel’s order and reasoning. Cf. Semsroth v. City of Wichita,

555 F.3d 1182, 1186 n.5 (10th Cir. 2009) (deciding that where appellate brief was

verbatim copy of summary judgment response, brief “inherently fail[ed] to

address in a direct way the decision under review and, as a result, does not

effectively come to grips with the district court’s analysis of the deficiencies in

[appellants’] case”). Thus, he fails to show by clear and convincing evidence that

                                          -8-
he should be relieved from the rule of good standing. See, e.g., In re Oliveras

Lopez de Victoria, 561 F.3d 1, 4 (1st Cir. 2009) (per curiam); In re Kramer,

282 F.3d 721, 724, 725 (9th Cir. 2002). Nor does he show that he was not merely

trying to circumvent the Disciplinary Panel’s first two orders.

      Because Mr. Smith has failed to show any defect in the Disciplinary

Panel’s proceedings denying him reinstatement or relief from the good standing

requirement, we AFFIRM the district court’s orders.


                                                    Entered for the Court



                                                    Wade Brorby
                                                    Senior Circuit Judge




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