UNITED STATES of America, Plaintiff-Appellee, v. William Dean CARPENTER, Defendant-Appellant.
No. 05-7061.
United States Court of Appeals, Tenth Circuit.
Jan. 20, 2006.
707-710
The district court noted that under relevant Kansas law at the time of Mr. Parker’s direct appeal, “[d]efense counsel’s actions [were] attributable to the defendant in computing speedy trial violations.” State v. Colbert, 257 Kan. 896, 896 P.2d 1089, 1092 (1995); State v. Bafford, 255 Kan. 888, 879 P.2d 613, 617 (1994). Subsequent decisions of the Kansas Supreme Court indicated a defendant does not waive his speedy trial rights under Kansas law if he personally objects before the trial court to a continuance motion made by defense counsel. See State v. Hines, 269 Kan. 698, 7 P.3d 1237 (2000). The district court nonetheless noted the caution expressed by the Tenth Circuit against requiring a lawyer to anticipate developments in the law to avoid ineffective assistance of counsel claims. See Bullock v. Carver, 297 F.3d 1036, 1052 (10th Cir.2002). Mr. Parker’s apparent failure to personally object to the trial court regarding the continuance, coupled with the contemporaneous law which attributed defense counsel’s request for a continuance to the defendant, led the district court to conclude that appellate counsel’s decision not to raise the statutory speedy trial claim was not objectively unreasonable under Strickland. As with Mr. Parker’s other claims, we do not find the district court’s dismissal of this issue to be debatable.
Accordingly, we DENY Mr. Parker’s application for a COA and DISMISS his appeal.
William Dean Carpenter, Oklahoma City, OK, pro se.
Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.
ORDER AND JUDGMENT*
BRISCOE, Circuit Judge.
Defendant William Carpenter, a federal prisoner appearing pro se, appeals from the district court’s denial of his “Application for Writ of Coram Nobis/Alternative Entry of Nunc Pro Tunc.” To the extent Carpenter’s application sought a writ of coram nobis or the entry of a nunc pro tunc order, we affirm the denial of such relief. To the extent the district court recharacterized Carpenter’s application as a motion under
I.
In September 2002, Carpenter was indicted on sixteen criminal counts arising out of his involvement, while incarcerated in an Oklahoma state facility, in a scheme to file multiple false income tax returns. On October 17, 2002, Carpenter pled guilty to a single count of making a false claim against the United States in violation of
On January 18, 2005, Carpenter filed a pro se pleading entitled “Application for Writ of Coram Nobis/Alternative Entry of Nunc Pro Tunc.” The pleading asserted, in pertinent part, that Carpenter’s sentence was excessive in light of the Supreme Court’s decisions in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and that Carpenter was therefore entitled to be resentenced. Alternatively, the pleading sought the issuance of a “nunc pro tunc order to amend the Judgment [sic] and Commitment Order” to indicate that the thirty-month sentence would run concurrently with, rather
On March 22, 2005, the district court issued an order denying Carpenter’s application. In doing so, the district court concluded that Carpenter had, by entering into the plea agreement which included an appellate waiver, waived his right to contest his sentence. The district court further concluded that, notwithstanding any waiver, Carpenter’s application was properly construed as a request for relief under
II.
We conclude that the district court properly denied Carpenter’s request for a writ of coram nobis. “[A] writ of error coram nobis is available only to correct errors resulting in a complete miscarriage of justice, or under circumstances compelling such action to achieve justice.” United States v. Bustillos, 31 F.3d 931, 934 (10th Cir.1994). Carpenter’s assertion that his thirty-month sentence, which he stipulated to as part of his plea agreement, is inconsistent with the holdings in Blakely and Booker is not sufficient to fall within the extremely narrow scope of coram nobis. Indeed, as the district court correctly noted, we have held that Blakely and Booker do not apply retroactively to cases, such as Carpenter’s, that became final prior to their issuance. See United States v. Bellamy, 411 F.3d 1182, 1184 (10th Cir.2005) (holding that Booker “does not apply retroactively to criminal cases that became final before its effective date of January 12, 2005“); United States v. Price, 400 F.3d 844, 849 (10th Cir.2005) (holding that Blakely “does not apply retroactively to convictions that were already final at the time the Court decided Blakely“).
We likewise conclude the district court properly denied Carpenter’s alternative request for the issuance of an order nunc pro tunc. Generally speaking, such orders are reserved for situations where a clerical error in a judgment, order, or other part of a record requires correction. See
Lastly, to the extent the district court recharacterized Carpenter’s application as a § 2255 motion and denied such relief, we find no basis for granting Carpenter a COA. “A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.”
We AFFIRM the portions of the district court’s March 22, 2005 order denying Carpenter’s requests for a writ of coram nobis or, alternatively, for issuance of an order nunc pro tunc. To the extent the district court’s March 22, 2005 order recharacterized Carpenter’s application as a petition under
BRISCOE
Circuit Judge