UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KENNETH ALAN LOWE,

Defendant-Appellant.

No. 00-5229

(D.C. No. 93-CR-186-B)

(N.D. Okla.)

ORDER AND JUDGMENT*

Before EBEL, KELLY and LUCERO, Circuit Judges.

Defendant-Appellant Kenneth Alan Lowe ("Lowe") filed a motion entitled "Petition for a Writ of Coram Nobis Based Upon Newly Discovered Evidence" ("Petition") on August 29, 2000.1 (See generally Doc. 52.) In his Petition, Lowe asserted that the judge who sentenced him to a total of 204 months of incarceration on his federal convictions for interstate transportation of stolen property and armed robbery,2 the Honorable Thomas R. Brett, should have recused himself from the proceedings due to his personal relationship with one of Lowe's victims. (See Doc. 52 at 2 (citing 28 U.S.C. §455(a)3).) In his Petition, Lowe asserted that "[t]he victim in [his] case, Donne Pitman, was personal friends with the sentencing judge, and had discussed the case with him, and gave his opinions and attitudes regarding those facts." (See Doc. 52 at 2.) He further alleged that Judge Brett "was a close and long time personal friend of the victim," and that this information was not disclosed by Judge Brett at any point in Lowe's criminal proceedings. (See id.) In support of these assertions, Lowe attached to his Petition a sworn affidavit, signed by him, claiming that Lowe's cousin Glen Shepard had informed Lowe that the sentencing judge was "best friends and long time golfing buddies" with one of Lowe's victims, and that Judge Brett, his wife, and the victim's wife had all discussed how they "were all very angry towards [Lowe] and . . . [Lowe's] criminal history and how much time [Lowe was] going to get." (See Doc. 52, attachment A.) The affidavit also asserted that Lowe had learned from Shepard that "[t]he [victim's] 12-year old daughter was having a birthday party in the basement when the robbery occurred and it was possible that one of the friends attending the party was a member of [Judge Brett's] family." (See id.) Lowe included in the affidavit a statement from Shepard that, in his opinion, the personal relationship between Judge Brett and one of Lowe's victims was "probably one of the reasons why Judge Brett refused to go along with the Government's recommendation of a downward departure, even though the recommendation was based strongly on [Lowe's] cooperation with the government."4 (Id.) Finally, the affidavit stated that Lowe was not apprized of this information until August 7, 2000, the date when Lowe was first able to speak to Shepard following Lowe's arrest. (See id.)

Judge Brett, in addition to being the sentencing judge in the initial criminal prosecution, presided over the adjudication of Lowe's Petition. In an order dated September 29, 2000, one month after the Petition was filed and prior to any responsive pleading from the government, Judge Brett denied the Petition on what appear to be two separate grounds. (See generally Doc. 53.) First, he found that a writ of coram nobis "is an extraordinary remedy available [only] to a petitioner no longer in custody." (See id. at 1 (citing inter alia United States v. Morgan, 346 U.S. 502, 511 (1954); Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989)).) Because Lowe is currently incarcerated, Judge Brett found that relief in the form of a writ of coram nobis was unavailable to Lowe, and thus that Lowe's Petition should summarily be denied. (See id. at 1-2.) Judge Brett nevertheless addressed Lowe's factual contentions on their merits, stating:

To the [Petition] Lowe attaches a hearsay affidavit signed by him referring to a conversation with his cousin of Tulsa, Oklahoma named Glen Shepard. In the affidavit Lowe states Shepard informed him the victim (Pitman) had privately communicated to the sentencing judge material facts about the robbery before the sentencing. This statement is not founded in fact. The sentencing judge, prior to sentencing, had no communication with the victim, Pitman, nor with any member of the Pitman family, about the facts of the Pitman armed robbery. Further, contrary to the affidavit in support of Lowe's motion, no member of the trial judge's family was in attendance at the child's birthday party Lowe states was in progress during the armed robbery of the Pitman home.

It is true the trial judge and Mr. Donne Pitman were acquainted prior to Lowe's sentencing but [they] were not close friends. No member of the Brett family has ever been in the Pitman home, nor has any member of the Pitman family been in the Brett home.

The Court's sentencing of Lowe was not due to anger, as Lowe suggests in his affidavit, but due to Lowe's guilty plea to Counts I and III and his lengthy criminal history of rapes, burglaries, and armed robberies.

(See id. at 5-6.) Lowe's motion to alter or amend judgment (see Doc. 54), filed on October 10, 2000, was denied by Judge Brett on substantially the same grounds as the initial Petition on October 24, 2000 (see Doc. 55).

Lowe then filed a request for a certificate of appealability ("COA") and for leave to proceed on appeal in forma pauperis, in which he asserted two grounds for reversal: (1) that the district court erred in failing to treat Lowe's pro se Petition as a 28 U.S.C. §2255 motion to vacate his federal sentence; and (2) that Judge Brett erred in finding no basis in 28 U.S.C. §455(a) for his recusal from Lowe's sentencing proceedings. (See Doc. 57.) Judge Brett denied Lowe's request to proceed in forma pauperis. (See Doc. 60 at 1.) Judge Brett further found that Lowe's request for COA was moot because no COA was required before Lowe could appeal Judge Brett's denial of the Petition for a writ of coram nobis.5 (See id. at 2.)

In his brief to this court, Lowe contends that Judge Brett erred in not liberally construing his Petition as one for a writ of habeas corpus brought under 28 U.S.C. §2255. (See Petitioner's Opening Br. at 3.) He further asserts that Judge Brett erred both in finding no basis for recusal in the original sentencing proceedings because his relationship with one of Lowe's victims created at least the appearance of impropriety, see 28 U.S.C. §455(a) (a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned"), and in not recusing himself from deciding Lowe's Petition because of his preexisting biases against Lowe and his status as a material witness to issues raised in Lowe's Petition, see 28 U.S.C. §455(b)(1) (a judge "shall" disqualify himself "[w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding").

The first question we must address is whether the district court erred in treating Lowe's Petition as a petition for a writ of coram nobis rather than as a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2255. We have generally disfavored the recharacterization of non-§2255 motions filed by prisoners as §2255 motions, even where the prisoner may be entitled to relief under §2255 but is clearly not entitled to relief under whatever cause of action he has asserted, because of the concern that such recharacterization might inadvertently result in a waiver of the prisoner's other claims for habeas relief. Cf. United States v. Kelly, 235 F.3d 1238, 1242 (10th Cir. 2000) ("[W]e have declined to construe a pro se Rule 32 motion as a §2255 motion where it was clear the defendant did not intend his motion to be so construed, largely out of concern that a subsequent §2255 motion would be considered successive."); United States v. Miller, 197 F.3d 644, 649 (3d Cir. 1999) ("With AEDPA in place, the practice of liberally construing post-conviction motions as §2255 petitions can, in the absence of cautionary or educational measures, impair the ability of inmates to challenge their convictions on collateral review."). Accordingly, we have held:

[D]istrict courts should not recharacterize a motion purportedly made under some other rule as a motion made under §2255 unless (a) the movant, with knowledge of the potential adverse consequences of such recharacterization, agrees to have the motion so recharacterized, or (b) the court finds that, notwithstanding its designation, the motion should be considered as made under §2255 because of the nature of the relief sought, and offers the movant the opportunity to withdraw the motion rather than have it so recharacterized.

Kelly, 235 F.3d at 1242 (quoting Adams v. United States, 155 F.3d 582, 584 (2d Cir. 1998)).

In this case, Lowe himself styled the Petition as one for a writ of coram nobis and never asked the district court to construe it as a petition for a writ of habeas corpus under 28 U.S.C. §2255. The district court viewed the Petition solely as one for a writ of coram nobis, and never informed Lowe of the potential adverse consequences attendant to recharacterizing the motion as one brought under §2255. Similarly, the district court never informed Lowe that his motion could properly be recharacterized as a §2255 motion, such that Lowe would have been forced to decide whether to allow the recharacterization or to withdraw the Petition rather than have it so recharacterized. Accordingly, the district court could not, under the rationale of our Kelly decision, have recharacterized the Petition as a petition for a writ of habeas corpus brought pursuant to §2255 and we find no error in its failure to do so.

In viewing this Petition as one for a writ of coram nobis, the district court correctly concluded that Lowe could not obtain relief through a writ of coram nobis because he is currently incarcerated. See United States v. Castro, 26 F.3d 557, 559 (5th Cir. 1994) ("The writ of coram nobis is an extraordinary remedy available to a petitioner no longer in custody who seeks to vacate his conviction in circumstances where the petitioner can demonstrate that he is suffering civil disabilities as a consequence of the criminal convictions and the challenged error is of sufficient magnitude to justify the extraordinary remedy.") (citations and quotations omitted). In addition, a writ of coram nobis generally is available only after all other remedies have been exhausted. Accord Klein, 880 F.2d at 253 ("Because the writ continues litigation after final judgment and exhaustion of other remedies, relief should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice.").

In this case, Lowe is presently incarcerated and apparently has not filed a §2255 petition for a writ of habeas corpus based upon the evidence presented in the instant Petition and accompanying affidavit. We therefore agree with the district court that Lowe is not entitled to relief in the form of a writ of coram nobis and affirm its dismissal of Lowe's Petition.

We express no opinion as to the merits of a §2255 motion, should Lowe decide to file one, based upon the facts presented in the instant Petition and accompanying affidavit.6 We do note, however, that §2255 allows a petition for a writ of habeas corpus to be filed for up to one year after "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." See 28 U.S.C. §2255, paragraph 6. Because Lowe has consistently asserted that the evidence presented in the affidavit could not have been discovered prior to August 7, 2000, he appears entitled to argue that a §2255 petition filed prior to August 6, 2001, would fall within the one-year statute of limitations applied to motions based upon newly discovered evidence. Again, we express no opinion as to the merits of that argument.

For the foregoing reasons, we AFFIRM the district court's dismissal of Lowe's Petition for a writ of coram nobis.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge