United States v. Williams

firming sentially three-level enhancement for “man presuming the reasonableness of ager/supervisor” role on that findings advisory Guidelines sentence and fail- der to, gave instructions fendant directed the ing to adequately consider his reasons for of, partic conduct and coordinated another seeking a lower sentence.

ipant’s .delivery methamphetamine); agree We with government Pofahl, States v. United F.2d that the district court did all it was re (5th Cir.1993) (finding 1480-81 no error quired to imposing do before a within- 3Bl.l(b) § applying who ne defendant Guidelines sentence. See United States gotiated drug prices, recruited other con Lente, (10th Cir. spirators, and directed other members of 2011) (noting imposes when court conspiracy). sentence, within-Guidelines it need neither We conclude the district did not 3553(a) explicitly §to refer factors nor err in clearly finding that Derek Zar was a respond every argument for leniency; supervisor or manager and we affirm its instead, general statement of its reasons application of the three-level enhancement. suffice). Here, will the district court noted advisory sentencing range of 63-78 F. Motion for Variance Under 18 months, 3553(a) 3553(a) (Derek Zar) § discussed several § fac U.S.C. tors, considered Derek arguments Zar’s Finally, Derek Zar challenges variance, for a and stated its reasons for the district court’s denial of his motion rejecting arguments those before imposing 3553(a). § a variance under 18 U.S.C. the low-end prison sentence of 63 months. “We review sentences for reasonableness We find no of discretion abuse under these under a deferential abuse of discretion circumstances. Haley, standard.” United States v. Cir.2008).

F.3d Because Conclusion the district court “sees and hears the evi dence, credibility determinations, makes Finding no reversible trial sentencing or and actually crafts Guidelines sentences defendant, errors to any we affirm. day day” it advantage after has a distinct over in determining this court “whether of an justify facts individual case 3553(a) pursuant

variance ... [and]

we generally defer to its grant, decision to grant, or variance upon based its America, UNITED STATES 3553(a)

balancing factors.” Id. Plaintiff-Appellant, At sentencing, Derek Zar asserted sev- eral supported factors his variance re-

quest. motion, In denying the Jeffrey WILLIAMS, Dan court concluded most of the factors he Defendant-Appellee. already asserted had been accounted for in No. 14-5070. advisory Guidelines, sentencing planned

his conduct rather than aber- United Appeals, Court of States rational, while others had recruit- Tenth Circuit. scheme, ed him into the fraudulent they June had through not done so coercion du- appeal, ress. On Derek Zar contends the abused its discretion es- appeals, Section, government Friedman, riage justice. Appellate A.

Richard jurisdic- Division, Depart- court lacked asserting United States the district Criminal (Patrick Justice, Washington, D.C. due to his ment of Mr. motion tion over Williams’s Harris, Special Patricia S. and C. Harris from this certification failure to first obtain Attorneys, Little Assistants, States United required by 28 U.S.C. Caldwell, AR; Assistant Rock, Leslie R. him to file a second or succes- permitting O’Neil, General, Acting David A. Attorney relief. corpus for habeas sive General, Attorney and Deputy Assistant jurisdiction pursuant Exercising Attorney Suh, Assistant Sung-Hee Deputy hold that the §§ 1291 and we U.S.C. D.C., him on General, with Washington, Penalty Death and Effective Antiterrorism briefs), Plaintiff-Appellant. for (AEDPA) limits the courts’ Act of Derryberry, Research Barry L. and to fraud on the court power to correct (William Widell, Assis- Writing Specialist justice when the miscarriage prevent of. him on Defender with Federal Public tant response court vacates a conviction brief), the Federal Public Office of Al- petition. or successive habeas second OK, Defender, Tulsa, Defendant-Ap- may these invoke though a district pellee. court here sponte, the district powers sua BALDOCK, BACHARACH, Before motion to with- acted on Mr. Williams’s McHUGH, Judges. Circuit plea, which is a second guilty draw his We therefore reverse petition. McHUGH, Judge. Circuit vacating court’s order jurisdic- for lack of conviction I. INTRODUCTION our discretion to tion. But we exercise over the course multiple attempts After brief as a appellate treat Mr. Williams’s con- years to attack his federal of fourteen a second or successive mo- request to file firearm drug various victions on 2255(h), and we tion under 28 U.S.C. a mo- Jeffrey Dan filed charges, Williams in request part. that grant for District Court tion in the United States seeking District of Oklahoma the Northern newly guilty plea his baséd to withdraw II. BACKGROUND Mr. Specifically, discovered evidence. 1 in support affidavits History submitted

Williams A. Factual plea was guilty his claim that his involun- from at According government, to the law enforcement tarily because the entered operated Mr. Williams least 1995 planted evi- investigating his case officers drug distribution illegal directed an and dence, testimony, and used gave false Creek, Tulsa, in and operation, primarily perjury intimidation to suborn threats and Counties, an He was Osage Oklahoma. conducting After from other witnesses. cook and methamphetamine experienced court va- evidentiary hearing, the district others to man- charged large fees to teach -It con- convictions. cated Mr. Williams’s Mr. Williams methamphetamine. ufacture perpetrated had cluded that the officers him man- help employed also associates vacating Mr. fraud on the court and purchase methamphetamine, ufacture necessary to convictions was Williams’s chemicals, and to find necessary precursor a miscar- prevent the fraud and to correct sentencing presented government to the challenged some of 1. Mr. Williams has n factswe recount here in place Mr. new evidence newly court to Williams’s with discovered Nonetheless, the facts context. we outline evidence.

1065 Appeal locations to manufacture and store his 2. The Direct and Prior Post- product. Proceedings Conviction Relief appealed conviction,

Local authorities arrested individuals Mr. Williams his affirmed. See United States v. and we conspiracy beginning connected with the Williams, (10th Cir.1999) they 1994 but did not realize the full 449 decision). (unpublished scope of the until table conspiracy By He then filed a series of point, collateral attacks. authorities had made con- His first four 2255 buys, methamphetamine trolled seized motions were denied and paraphernalia at traffic district court and the Tenth stops, and inter- Circuit. See, Williams, e.g., In re viewed various in- No. witnesses about their (10th Cir.2008); United States volvement with Mr. Williams and a cocon- Williams, (10th spirator, Fed.Appx. James Edmondson. At Cir. 2006) curiam) (per United point, (unpublished); law enforcement officers turned the Williams, States v. investigation Fed.Appx. focus of their to Mr. Cir.2002) (unpublished). Williams. Various searches of Mr. vehicle, residence, and the resi- 12, 2010, On November Mr. Williams dence then-girlfriend of his uncovered request filed a fifth postconviction re- drugs, drug paraphernalia, drug manufac- lief, in which he first allegations raised the turing equipment, and a firearm. As a appeal. relevant to this Mr. Williams result, Mr. Williams was arrested and ulti- claimed at least five Tulsa Police Depart- mately charged under federal law. ment officers who were involved in the investigation of his case were also the sub- History

B. Procedural ject an investigation corruption into (the the Tulsa Indictment, Guilty Department Police Plea, corrup- 1. The Federal investigation), tion Sentencing in- and uncovered planted stances of perjury evidence and pled guilty Williams to four counts other criminal cases. According to Mr. alleged in a conspiring federal indictment: Williams, these officers fabricated and ma- to manufacture possess methamphet- evidence, nipulated witnesses, intimidated (the count); amine conspiracy two counts and used false informants his case. of possessing with intent to distribute Although we denied Mr. Williams au- methamphetamine 12, 1997, on March thorization to file a successive peti- habeas (the July counts); drug pos- tion because he had not provided evidence sessing during firearm and in relation to support allegations, to his we noted our (the drug a trafficking crime firearm prejudice denial was “without to Mr. count). sentencing, At Mr. Williams dis- court, refiling, Williams’s in this a motion puted the amount methamphetamine of he for containing complete authorization a de- responsible manufacturing for and/or scription of all relevant facts and circum- distributing, but rejected the district court stances, with supporting evidence.” Mr. Williams’s argument and instead ac- cepted the testimony agent. of a DEA In an attempt comply to with our in- The district court therefore sentenced Mr.’ structions, Mr. request Williams refiled his Williams to a total term of 420 months for authorization to file a second succes- imprisonment, including 360 months for sive with this court and conspiracy counts, each of the drug and attached notarized statements from vari- running concurrently, and 60 again months for ous witnesses. We denied the mo- count, gun running consecutively. tion because the new evidence did not as a younger sister name Mr. Williams’s any officer between connection a

establish codefendant. investigation corruption in the implicated in- agents and federal and the witnesses’ Response Court’s b. The District case. in Mr. Williams’s volved Motion construed the

The district Relief Rule of Civil Postconviction under Federal request aas 3. The Current 60(d)(3), acknowledges a which Proceeding Procedure authority to set court’s inherent district a. Mr. Williams’s Motion. court. fraud on the judgment aside (cid:127) se “Motion pro filed next Mr. Williams appointed counsel The district also (the Plea” Nullify Guilty and to Withdraw Williams, parties ordered for Mr. January Motion) court on the district with evidentiary an discovery, and held conduct ap- this subject which is intermit- conducted hearing, which was “the Motion, argued that he In the peal. May 2012 and June 2012.3 tently between corruption in the [involved officers same court re- hearing, At the in the same- engaged investigation had] multiple witnesses testimony ceived from the investi- during illegal conduct type of Mr. claims supported Williams’s who Mr. seizures [in searches and gation, fraudulently acted police the Tulsa officers case,]” this conduct and that Williams’s case. investigation of his during the Mr. plea. guilty in Mr. Williams’s resulted opinion an court issued The district undermining attached evidence Williams judgment vacating Mr. Williams’s order agent DEA used testimony of the third su- dismissing the and sentence and findings at Mr. drug quantity support doing, the In so perseding indictment. addition, Mr. sentencing.2 In De- that Tulsa Police court found affidavit attached his own Williams a fraud on the partment officers committed officers conducted he claimed Tulsa which convic- Mr. Williams’s required court that cause, coerced probable without searches alternative, In the tions to be set aside. gun charge, and testimony regarding motion to granted the court Mr. Williams’s they than methamphetamine less s'eized on the plea based guilty his withdraw stated further Williams reported. authority prevent common law court’s guilty be- plead pressured he was finding miscarriage justice, specifically govern- him cause his counsel advised actual that Mr. Williams had demonstrated Su- to file a Fourth planning ment was of the evi- preponderance innocence add a intervening Indictment which would deci- distinguish To perseding dence. (CCE) Baker, States enterprise sion of this United continuing criminal (10th Cir.2013),4 held F.3d 1204 and would 718 Williams charge against Mr. deciding considering appeal, the "sufficient for appendix on compiling the 2.In 30.1(A)(1). transcript appeal,” Cir. R. government failed 10th to include issues hearing evidentiary the district court’s of the exhibits contain did not include some permis- government a motion for filed Williams exculpatory that Mr. ing evidence interlocutory appeal with this to file an sion Nevertheless, court. provided to the district order, court, challenging court’s the authority to docu our consider we exercise permission government to the but we denied court but filed with the district ments appeal. Milligan-Hitt v. appendix. in the contained 2, Cnty. No. Sch. Dist. Bd. Trs. Sheridan of of in Baker in more our 4. We discuss decision (10th Cir.2008); see.10th 523 F.3d 1231 opinion. Part See detail later in this infra government 30. We remind Cir. R. also III.B.l.b. appendix that is obligation its to submit of alleging that motions fraud on the court stricted powers those in a way that divest- should be treated as second or successive ed the district court jurisdiction to act petitions, explained the district court that on the Motion. In ruling, so we first Court, defendant, “it is the not the analyze whether the Motion is a second or authority has invoked its inherent and has petition successive for habeas relief and construed Mr. motion to Williams’[s] With- Next, conclude that it is. we explain that Nullify Guilty draw and Plea aas fraud on although courts have the inherent authori- the court motion.” United States v. ty to correct fraud on the court or to Williams, F.Supp.3d 1313 n. 5 prevent a miscarriage justice, AEDPA (N.D.Okla.2014). has limited a ability court’s to exercise those powers inherent when the court

The district court is entered its order on 18, 2014, acting on a successive April government petition and the filed an second.or for habeas relief. appeal Ultimately, of that decision on June we conclude response, Mr. Williams filed a motion in district court properly did not seeking this court to govern- dismiss the invoke its inherent powers in Mr. ment’s appeal untimely.5 as Williams’s case and therefore it. lacked subject jurisdiction matter to vacate his

III. DISCUSSION conviction. But we exercise our discretion to appeal, government On construe Mr. argues arguments district court appeal lacked to vacate a request as for authorization to file Mr. Williams’s conviction because Mr. a successive petition habeas grant Williams failed to first obtain certification request in part. permitting

from this court him to file a A. The Motion is a Second or Succes- petition, second or successive required as Corpus sive Petition for Habeas AEDPA. In response, under Mr. Williams Relief. claims the district court independent had (1) jurisdiction because the Motion was not begin by We determining wheth or petition second successive or irre- er Mr. Williams’s Motion is a second or spective of AEDPA’s limitations on second successive gov is therefore petitions, the court had the erned AEDPA. After a prison federal authority inherent to correct fraud on the er has postjudgment filed one peti habeas or, alternatively, prevent a miscar- tion, which permitted is under 28 U.S.C. justice. riage of 2255(a), postjudgment another motion is treated as a below, For the second or successive explained reasons we motion if it conclude that asserts or although AEDPA has not reasserts claims of eliminated error in prisoner’s the courts’ conviction. correct United Nelson, prevent fraud on the court or to States v. miscar- justice riage entirely, Cir.2006); AEDPA has re- Crosby, see Gonzalez v. 5. The basis for Mr. Williams’s motion is that court’s order was issued in the criminal case Appellate gives Federal Rule of judgment Procedure 4 and vacated the entered in that government thirty days appeal government criminal case. But the did not sixty days appeal criminal case and appeal thirty days in a file its notice of within 4(a)(1)(B), Compare R.App. civil required by case. Fed. P. Rule 4. Because the timeliness of 4(b)(1)(B). argues with id. government’s appeal Mr. Williams dependent upon district court's order was an order in a crimi- our ultimate conclusion about the nature of case, action, noting government’s nal notice of the district court's we reserve the res- appeal governing referred to the rules dispute analy- crimi- olution of this until later in our appeals. nal He also indicates the district sis.

1068 petition a held that Weathersby, where we 162 530-31, U.S. (2005) petition initial §a 2254 mo- after an (involving technically filed L.Ed.2d 480 tion). postjudgment a whether a or succes- discern treated as second To need not be is, fact, in a suc- styled otherwise motion defect did purported if “the petition sive motion, “look at § we 2255 cessive arise, ripen, until claim did not not or the a title pleading’s than sought, rather relief peti- previous the conclusion after Baker, States form.” United or its Cir.2013) (10th 1108, 1111 717 F.3d tion.” Cir.2013). If a F.3d omitted). (internal At- marks quotation underlying con- challenges his petitioner Weathersby for the qualify tempting § 2255 viction, filing is a successive his alleges the defect exception, Mr. Williams a (concluding id. motion. See he filed not exist when in conviction did his conviction court fraud on the alleging filed and thus his habe- petition, his first habeas petition). or successive second Tulsa because the ripe, claim was not as 2255(h) § important because distinction not discovered corruption had been police jurisdiction court of a district deprives persuaded. are not that time. We at habe- second or successive uncertified over exception narrow Weathersby outlined a Nelson, at 1148.6 petitions. as § 2255 motions to the bar on successive withdraw motion to Mr. Williams’s claim particular where a for circumstances within the squarely guilty plea falls his in a initial raised defendant’s cannot be peti or successive of a second definition at 1111. This occurs § motion. Id. § initial 2255 motion He filed an tion. for a claim does the factual basis where 4, 2001, January not simply where it has yet not exist—not merits. His and denied on the reviewed of a de- the time yet been discovered—at court to asked the district Motion current instance, For fendant’s first motion.. guilty plea his him to withdraw allow sen- defendant’s federal Weathersby, the underlying conviction. challenged his thus prior based on state tence was enhanced motion, § a successive It is therefore sentencing at 1109. After convictions. Id. even have court did “not motion, § 2255 the de- and after his first sought deny the relief state successfully challenged his fendant of a certification in the absence pleading” they expunged. Id. 1148; were Nelson, convictions F.3d at this court. from 2255(h) his separate challenge (explaining § He then raised 28 U.S.C. see also motion must Although or successive the defendant second federal sentence. appropriate from the receive certification Weathersby post- filed a new motion may it be consid appeals court of before relief, this court held was conviction court). by a district ered challenge petition because á successive ripe was not his enhanced sentence this, us to asks Despite Williams § 2255 motion. Id. filed his first when he an initial the Motion as consider the factual explained in In re We on our decision He relies petition. guilty of the 2255(h) found the movant explains petitioner have that a 6. Section offense; from a federal court obtain certification must law, (2) con- appeals that the successive motion made constitutional A new rule of tains: review to cases on collateral retroactive that, prov- Court, if Newly previ- discovered evidence by Supreme that was light of the evidence en and viewed in ously unavailable. whole, to estab- would be sufficient 2255(h). governing Procedures 28 U.S.C. convincing evidence lish clear and § 2244. found in 28 U.S.C. certification are would factfinder that no reasonable basis for his claim—that his state convic- authority to correct fraud on the court or expunged not tions were exist when prevent miscarriage justice. of —did corpus he filed the first habeas motion. B. The Courts’ Inherent Powers and

Id. AEDPA’s Limitations on Them contrast, the factual basis of Mr. , Federal courts police enjoy Williams’s claim—that Tulsa officers numerous inherent lied, planted equitable and various witnesses evi powers. See v. Chambers NAS dence, statements, CO, fabricated witness Inc., mis 32, 43-45, 501 U.S. 111 S.Ct. agents, led federal and otherwise coerced 2123, (1991) 115 L.Ed.2d 27 (discussing plead guilty Mr. Williams to at various powers, inherent including —existed petition. the time of his initial habeas Be power to “control admission to its bar and cause these acts occurred well before Mr. discipline attorneys who appear before Motion, Williams filed the he rely cannot it,” “punish for contempt,” to correct Weathersby exception. on the See United court, fraud on the to control court its McCalister, 718, States v. 545 F. App’x room, to conveniens, dismiss for forum non (10th Cir.2013) 720-21 (unpublished) sponte and to sua dismiss failure to (treating allegation police of corruption prosecute); Eash Riggins Trucking § as a successive 2255 motion because the Inc., (3d Cir.1985) police corruption, and hence the defen (outlining general three categories of in claim, trial).7 dant’s at existed the time of powers); herent see McQuiggin also Although proof allegations those — Perkins, —, U.S. may not have been available to Mr. (2013) 185 L.Ed.2d 1019 (evaluating petition, Williams when he filed his first equitable authority courts’ prevent newly proof implicates available newly miscarriage justice). powers These are discovered evidence exception necessary to “control and direct the con 2255(h)(1), § not whether Mr. Williams’s duct of litigation” and are exercised “with claim should be treated as an initial habeas any express out authorization in a constitu petition.8 tion, statute, or written rule of court.” reasons, For these we conclude Mr. Anchen, Joseph J. Broader Is Better: The petition must be construed as a Courts, Inherent Federal Powers of petition second or governed by N.Y.U. Ann. Surv. Am. L. 2255(h) 2255(h), of AEDPA. Under (alteration quotation and internal marks prohibited Mr. Williams was filing from a omitted). Two powers, of these second or successive without first to correct a fraud on the court and to obtaining certification from this prevent a miscarriage justice, are which he failed to do. We pro- therefore issue here. ceed to Mr. Williams’s argu- alternative that, though Although equitable ment even the courts’ his Motion is a petition, powers second or successive “always have been characterized court had under its inherent flexibility” they may so that “meet new Though precedential, charged we find the rea- or convicted of crimes discovered soning unpublished opinions of this court's during corruption investigation. But Mr. ("Unpub- instructive. See 10th Cir. R. 32.1 rely current claims on the officers' Williams's opinions precedential, may lished are not but underlying conducting misconduct in their in- value."). persuasive be cited for their vestigation, prior which occurred to his first petition. federal habeas petition, 8. After Mr. Williams’s first habeas some of the officers involved in his case were miscon- by prosecutorial procured ment equitable inter demand situations duct). all the relief neces vention, accord and to injustices particular the to correct sary with deter- charged are therefore We situations,” Hazel-Atlas in these

involved pro- AEDPA whether the relevant mining Co., 322 Hartford-Empire Co. Glass 2255, type the vision, reflects 28 U.S.C. 997, L.Ed. 1250 238, 248, 88 64 S.Ct. U.S. that limits the statutory command of clear power is not boundless. (1944), judicial the fraud on the court to correct power courts’ recog Court has Instead, Supreme the justice in this miscarriage a of prevent and created the Congress that because nized case. courts, may it circuit and district

federal powers, inherent so their Fraud on the Court statutorily limit clearly are re limitations long as such AEDPA argues government The Chambers, 501 U.S. by flected statute. power to the courts’ inherent has limited Eash, F.2d see 757 47, 2123. But 111 S.Ct. peti a on court where correct fraud “irredu judiciary’s that (opining at 562 of fraud a allegations raised tioner has the ex authority” authorizes cible inherent but has failed petition second are “so powers which inherent ercise of under required certification to obtain as a essence of court to the fundamental 2255(h).9 rejected court district can Congress that tribunal” constitutional any proce that reasoning argument, this them). Therefore, where a stat not limit inap in AEDPA were dural bars contained limiting command” an “clear[ ] ute includes act on court did not plicable because the cannot ex courts judicial power, Motion, sponte. inherent but instead acted sua in contravention power that ercise below, we explained the reasons For at 1934 McQuiggin, 133 S.Ct. statute. AEDPA agree government with the Florida, 631, 560 U.S. Holland (quoting authority pro- limits a court’s inherent 2549, L.Ed.2d 130 646, 177 130 S.Ct. an acting from on hibits district courts States, (2010)); see, v. United e.g., Carlisle petition, or successive unauthorized second 416, 428, 134 517 U.S. alleges fraud on the if the even (1996) (rejecting, argu L.Ed.2d 613 although court. We also hold power inherent court has the ment that a court was correct AEDPA district an rule applicable to act in contradiction contain) (and may any procedural bars could not holding that district a court acts sua apply where does untimely for motion sponte grant an sua than on a second or succes- sponte, rather Nova Sco acquittal); Bank judgment of did not act petition, sive of States, 254, 108 487 U.S. tia v. United AEDPA’s cer- sponte here. Therefore sua 2369, 101 (holding the dis- applies requirement L.Ed.2d tification S.Ct. Procedure to vacate Rule Criminal trict court lacked that Federal of fraud on based on court’s convictions of federal 52 sets the boundaries the court. an indict- power to dismiss supervisory reply appeal brief are opening the first time government’s brief on 9. Because the waived.”). Weesev. challenge the district court’s But see appeal generally did not deemed (10th Schukman, con- the Oklahoma officers’ conclusion that Cir. F.3d we as- fraud on 1996) duct constitutes types egregious mis (describing purposes appeal that it does. for this sume of fraud on the rise to the level conduct that Comm’r, F.3d Wheelerv. court). Cir.2008) ("[IJssues by appellant raised Any a. The inherent to-correct F.2d at 561. relief a party may ob- fraud ,we tain when correct a on the court fraud on the court primary subordinate to our interest historically enjoyed have Courts restoring integrity. the court’s authority judg the inherent to correct ments obtained the commission of fraud b. AEDPA restricts the juris- court’s court, regardless ordinary proce on the diction to consider a second or suc- dural bars like statutes of limitations or petition, cessive even peti- where the the time imposed limits on motions to set. alleges tion on the court. fraud judgments aside for fraud. See Hazel- Having discussed the nature of and rem Atlas, 244-46, at 322 U.S. 64 S.Ct. 997 edies available under the courts’ inherent (acknowledging exception to the gener power to court, correct fraud on the we prohibition against al a altering judgment now consider whether AEDPA has limited after the if expiration the court term the power that in the context of a second or judgment was the result of fraud on the successive petition. habeas explained As 60(d)(3) court); see also Fed.R.Civ.P. above, III.A, supra Part AEDPA plainly (“This rule not limit a does court’s requires that before filing a second or to ... set aside a judgment for fraud on motion, § successive 2255 petitioner a court.”); the Zurich N. Am. v. Matrix must obtain certification from appro (10th Serv., Inc., 1281, 426 F.3d priate court appeals. 28 U.S.C. Cir.2005) (explaining that limi procedural 2255(h). § years In the immediately after 60(b) tations on Rule motions do not apply AEDPA, Congress passed from precedent allegations). to fraud on the court This is this court and other acknowledged circuits “a produced by because decision fraud on possibility that a might court have all, court is not essence a decision at jurisdiction to a consider second or succes and never becomes final.” Kenner v. petition, despite § sive procedural 2255’s Comm’r, (7th Cir.1968). 689, 387 F.2d 691 bar, petition where the alleges fraud on See, The e.g., courts’ interest correct the court. United States v. (10th 980, ing McVeigh, a fraud 9 Fed.Appx. on the court stems from “far 983 Cir. 2001) (unpublished) (considering a injury single petition more than an to a litigant.” er’s Hazel-Atlas, argument prosecution that 246, com 322 U.S. at 64 S.Ct. mitted fraud on the court Instead, assuming 997. primary objective our when “the existence of a fraud on the court correcting a fraud on the court is to re exception to gatekeeping requirements harm integrity judi dress to “the and affirmative limitations in appli 2255 process.” cial United States v. Estate of motions”); cable to second or successive Stonehill, (9th Cir.2011) 415, 660 F.3d 444 Johnson, (5th 147, Fierro 153 (internal omitted). quotation Al marks Cir.1999) (recognizing potential that though a court may judg “vacate its own the inherent power to correct fraud on the upon proof ment that a fraud has been may give life to a challenge that perpetrated court,” upon may also procedural AEDPA’s bars would otherwise appropriate “fashion an sanction” short of forbid). disturbing an otherwise judgment. valid Chambers, 44, 501 U.S. at 111 S.Ct. As the federal interpreting case law Such sanctions assessing attorney include however, progressed, AEDPA it called into 46, against culpable party, fees id. question the practice relabeling what .of disbarment, suspension, S.Ct. or would otherwise constitute a second or reprimand or other against attorney successive a alleging as motion Eash, judicial who abuses the process, attempt 757 fraud in an to avoid the reach of jurisdic ruled it lacked procedural AEDPA’s bars. See Gonzalez 531-32, peti motion because the tion to hear the Crosby, 545 U.S. received authorization from tioner had not (holding 162 L.Ed.2d 60(b)(6) file the motion. Id. at 1205- mo this court to a Rule labeled as pleading agreed we and held that appeal, 06. On a second or succes considered tion will be asking the district court to invoke if it motion subject to AEDPA motion sive habeas power to correct fraud on the or its inherent grounds new for relief to add seeks exempt court is not from criminal trial determination previous attacks a habeas 2255(h)’s Boone, requirements. merits); preauthorization Spitznas v. on the Cir.2006) (cau despite at 1208. We reasoned Id. 1216 n. F.3d authority to correct a court’s inherent attempts to re-cast tioning “spurious cannot petitioner on the guise in the fraud arguments habeas substantive statutory AEDPA’s certifica ... be circumvent properly on the court’ will of ‘fraud requirements applicable tion to second-or- allege re-allege attempt treated as an relief, applications by filing pleadings thus grounds for habeas substantive as motions under Rule peti that are labeled a second successive presenting 60(b) tion”). actually corpus peti but are habeas conclud tions in substance. We therefore in v. Bak recently, United States Most seeking the same relief as a ed that a claim er, rejected possibility the squarely we attack, collateral even second or successive on court of convic alleging fraud that court’s inherent if it invokes the district procedural to the exception creates an tion power, exempt is not from certification (10th 2255(h). § 1204 under 718 F.3d bars 2255(h). §in requirements Id.10 Cir.2013). Baker, prisoner a federal Baker, that in cir- asking From we learn this or successive motion filed a second cuit, that AEDPA has indeed limited correct fraud on the court the court to power to correct fraud on the con- place during his criminal courts’ allegedly took petitioner has al- trial, Rule of Civil Proce viction court where citing Federal 60(d)(3)’s ready at 1205. received fair habeas review.11 savings clause. Id. dure alleges solely shortly petitioner fraud decided 11. Where a We note that Baker was Supreme analysis decision Court issued its is differ- before the initial habeas our Perkins, McQuiggin because, case, that v. which instructed petitioner ent in such "displace cannot courts' traditional AEDPA may opportunity chal- not have had a fair authority command." equitable absent the clearest lenge the of his conviction in the first merits —, 1924, 1934, 133 S.Ct. — U.S. Crosby, proceeding. 545 habeas Gonzalez 5, (2013) (quoting Holland v. L.Ed.2d 1019 185 2641, 524, U.S. 532 & n. 125 S.Ct. 162 2549, 631, 646, Florida, 560 U.S. (2005); Spitznas L.Ed.2d 480 see also (2010)). party Neither has L.Ed.2d 130 177 Boone, 1213, (10th Cir.2006) 464 F.3d 1216 ruling whether this casts asked us to consider ("If alleged the court relates fraud on holding. Baker's See United States doubt on solely perpetrated on the federal ha- to fraud J., Cir. v. Edward court, then the motion will be consid- beas 2000) panel (explaining of this court 60(b) motion.”). ered a true panel the decision of another can overturn superseding contrary Supreme "a based on petitioner's pro- And even if a initial habeas (internal quotation marks decision” Court fair, may ceeding he obtain relief for omitted)). We decline to do so. therefore petition later-discovered fraud in successive Zaler, Fed.Appx. States v. But see United 2255(h), convincing § evi- under if clear and (10th Cir.2015) (ruling (unpublished) that absent the fraud no reason- dence shows peti McQuiggin does not allow a habeas petition- have found the able factfinder would 2255(h)’s § to "circumvent restric tioner guilty. er by alleging simply fraud on the court tions” petition). or successive second Therefore, corpus without authorization from the for habeas relief argu- based on challenging ments underlying his convic- appeals, court of a district appropriate tion. Id. at 118 S.Ct. 1489. The may petitioner’s not act on a second Ninth Circuit thereafter recalled man- its vacate a petition- or successive motion to 548-51, date granted relief. Id. at conviction, er’s even where that motion Supreme S.Ct. 1489. The granted Court alleges fraud on the court.12 Because we the state’s for certiorari. Id. at have determined the Motion Mr. 549, 118 S.Ct. 1489. The Court first ex- Williams filed the district court is a plained that the defendant’s motion asking petition, second or successive the circuit court to exercise its inherent jurisdiction lacked the under power to recall the mandate was effective- 2255(h) act on it in the absence of ly a second or application for certification from this court. 2244(b) governed by § habeas relief be- challenged cause it underlying convic- c. AEDPA’s procedural bars do not tion. Id. 118 S.Ct. 1489. The where apply acting a court is not Supreme then plain reviewed the Court. pursuant to a motion. 2244(b), text of if instructed that court acts on the application defendant’s limitations, Notwithstanding AEDPA’s petition, a successive its argues Mr. Williams the district court here AEDPA, constrained but where the did not act on his second or successive truly acting initiative, court is on its own instead, petition, but invoked its inherent AEDPA, by plain its language, does not authority sponte. sua We thus next ad- govern the matter. Id. could, and, dress whether the district court Next, Supreme the Court undertook the fact, did, in properly sponte. act sua task of determining whether the Ninth Mr. Williams is correct that AED- Circuit had acted on the defendant’s suc- PA will authority not constrain a court’s to petition, cessive beginning with an exami- employ equitable powers its inherent if the nation of the circuit’s stated basis of its cautioned, action. initiative, Supreme Id. The Court acting court is on its own rather “The court’s characterization of its action upon than the application by peti filed the not, course, sponte as sua does of prove tioner. Thompson, Calderon v. 523 U.S. point; this had the court considered claims 538, 554, 140 L.Ed.2d 728 presented or evidence in [the defendant’s] (1998). This is so because AEDPA' —and filings, later its action would have been any may it governs limitations contain — application, based on a successive and so courts’ in response peti actions to habeas 2244(b).” subject would be In Id. only tions and is therefore in applicable words, if, action, taking other in “the court instances in which “the court pursuant acts present- considers new claims or evidence ” prisoner’s to a ‘application.’ [habeas] Id. in application ed a successive for habeas Calderon, prisoner In a in a capital state relief, proper it regard the court’s asking case filed a motion the Ninth Cir- application” action as based on that cuit to exercise its inherent to recall the court AED- is therefore constrained its mandate denying original request his PA. Id.13 action, Although disciplinary AEDPA alerting prosecutors limits the district court’s for or potentially criminal conduct. underlying to vacate the convic- response in tion to a second or successive provisions interpreted 13. The of AEDPA in petition, the statute does not address reme- provi- slightly are than the Calderon different conviction, independent dies such as Supreme at in sions issue this case. The individuals, sanctioning referring attorneys 2244(b), interpreted Court 28 U.S.C. which reversing a discretion court is within its Calderon, con- Supreme Court the

In It did not indicate sponte. its man- sua recalled mandate Circuit the Ninth cluded relat- of fraud on the irregularities presence that the voting of because date analysis, and that did not part of its the first alter the first would ed provided or evidence claims the consider the test deter- it established wherein Id. The motion. petitioner’s the sponte. a court acts sua whether mining the Ninth explained that Supreme Court con- that in the thus instructs Calderon on the and “acted reconsidered Circuit petition, or successive of a text second rather relief] [for habeas application first the exercise of inher- AEDPA does not bar result, a Id. As successive one.” a than truly acts sua authority a court where ent the Ninth Court held Supreme is, acted without where it sponte—that there- sponte, and acted sua indeed Circuit presented or evidence considering claims bars second procedural AEDPA’s fore Al- petition. in the successive habeas directly not petitions were or successive applica- limit the would though the dissent applicable. cases sponte sua test to tion of Calderon’s Nonetheless, reversed the Court recall of a an court’s involving appellate decision, ex- sponte sua Ninth Circuit’s mandate, we are not convinced habeas a court acts sua that even when plaining reading. such narrow Court intended its discre- must still “exercise sponte, its Rather, to establish we read Calderon with ob- in a manner consistent tion determining whether general test for promoting specifically, jects of’ AEDPA — (district sua appellate) habeas acts finality judg- interest state’s more reading of Calderon is sponte. This Because at 118 S.Ct. 1489. Id. ment. 'on general ban consistent with AEDPA’s justification for recall- appeals’ the court peti- or successive consideration of second did not com- mandate in Calderon ing the tions, applies both AEDPA, the Court objects port with court, level, appellate court as well mandate constitut- recalling ruled interpretation of prior with this court’s 554-566, Id. at its discretion. ed abuse Billings, sponte. Bylin See term sua ruling, the Court S.Ct. 1489. so (10th Cir.2009) n. 6 F.3d that Calderon was took care to note an issue' court raises (explaining “[a] which involving fraud on case ‘[wjithout it does so sponte when sua proper a basis provide presumably would mo- or on its own prompting suggestion; Id. at reversing sponte. a sua mandate ” pur- ruling that a district court tion’ and Notably, the Court 118 S.Ct. 1489. not, fact, sponte to act sua did porting distinction in this made fraud-on-the-court had raised the so because the defendant do analysis, where part of its it the second (second issue in a motion altera- relevant explained the under a circumstances provided corpus, except sec- present- habeas claim of requires “[a] a court to dismiss 2255(h) bars second corpus "[a] Section tion 2255.” ed in a or habeas second successive that has not been certi- or motion” application” attacking criminal convic- successive a state appeals bring a by court of to fied a federal provisions governing second tion. or newly or on discovered evidence con- claim based on federal successive collateral attacks new, retroactive,, 2244(a) law. rule of constitutional §§ a 2255. victions are 28 U.S.C. 2244(a), bar to or successive habeas AEDPA’s second "No circuit Under Section by and federal appli- petitions filed state defen- required both be to entertain judge shall "application” or "mo- focuses corpus ... if dants a writ of it cation for habeas defendant, by filed a therefore detention tion” appears legality of such has applies types to both of logic of by judge of Calderon or court been determined proceeding^. application prior for writ United States on a original)) (quoting tion in Black’s Law Dic- judgment. essentially This is (7th ed.1999)). tionary 1437 We therefore the same relief Mr. requested Williams proceed by applying the Calderon test to because, had the district granted the facts of Mr. Williams’s case. Williams’s motion to guilty withdraw his plea, it necessarily would have also vacated d. The district court did not act sua judgment. Franklin, Hicks v. Cf. sponte in Mr. Williams’s case. Cir.2008) F.3d (granting a Calderon’s, by principles, Guided motion to guilty withdraw a plea and va- we now decide whether the district court cating judgment). Under the an- test pursuant acted to the Motion or whether Calderon, nounced in the district court was so, sponte. acted sua To do we first ascer acting on Mr. appli- Williams’s successive tain “underlying basis of the court’s cation, something jurisdiction it lacked to Here, action.” Id. 118 S.Ct. 1489. indo the absence of certification from this the district court claimed it acted sua Accordingly, court. we must reverse the sponte to correct a fraud on the court. district court’s decision to vacate Mr. Williams, United States v. 16 F.Supp.3d Williams’s convictions'on the basis of fraud (N.D.Okla.2014). 1313 n. 5 But the on the conviction court. district court’s characterization is not the inquiry; end of our Calderon instructs us Miscarriage of Justice to confirm claim determining whether the district court “eonsiderfed] Because we conclude the district court presented new claims or evidence in a lacked vacate Mr. application for habeas relief.” Williams’s convictions on the basis of fraud 554, 118 523 U.S. at S.Ct. 1489. on the we turn to whether the court here, Applying authority this test to the facts had inherent we to vacate the con- easily conclude that the district court acted prevent victions to a miscarriage jus- on Mr. Williams’s successive application tice. As with Mr. Williams’s fraud on the for habeas relief because the district court claim, explain we first the nature of considered the new claims and evidence power this inherent and then look to the raised Mr. Williams’s Motion. 2255(h), provision, § relevant AEDPA Motion, Mr. alleged Williams police Tulsa determine whether and to what extent officers lied at preliminary the state hear- Congress has limited the courts’ ing and a witness made false statements to prevent miscarriage justice. a DEA agent, which resulted in an artifi- quantity increase in the cial of metham- authority a. The inherent prevent phetamine involved. Based on these and miscarriage justice allegations, other Mr. Williams moved the Historically, the common law mis court to nullify guilty withdraw and his (also justice carriage exception of referred or, plea alternatively, to remand case to as actual exception) innocence al evidentiary hearing for an appoint and to petitioner lowed a to pro overcome certain him response, counsel. In the district postconviction cedural bars to relief if a granted court first the alternative relief petitioner likely could show “it is more counsel, requested: appointed opened than juror not that no reasonable would discovery, and evidentiary conducted an have convicted him in light of the new hearing to further develop the evidence Delo, 298, Schlup evidence.” 513 U.S. presented Mr. Williams in his Motion. 327, (1995). 851, presented Based on the at L.Ed.2d 808 evidence hearing, the district court authority grounded equita- vacated Mr. This “is in the excep- the common law held preme courts to see that Court of habeas

ble discretion do not result had Id. errors tion survived. constitutional federal persons.” of innocent incarceration in the 2255(h) U.S. -, 133 a contains b. Section Perkins, modified McQuiggin - justice exception. miscarriage (2013) 1931, 185 L.Ed.2d 1019 S.Ct. of n omitted). Thus, (internal marks quotation analysis to McQuiggin’s Applying relief on grant “a court could pre-AEDPA case, determine we must Mr. Williams’s then petition, a second-or-successive provision— AEDPA whether the relevant peti if the petition, an ‘abusive’ known 2255(h) case, a modi § in this —contains a fundamental mis show that tioner could If justice exception. miscarriage of fied likely than carriage justice [more of would free to invoke so, court was not the district (internal 'quota at 1933 result.” Id. not] authority to correct a mis common law its omitted). marks tion con justice but was instead carriage of But, inherent power as with the courts’ on that by the limitations strained court, a fraud on to correct power by Congress. established limit courts’ may statutorily Congress 2255(h)(1) petitioner a to allows Section jus miscarriage of authority prevent petition if the or successive bring second com by so “the clearest tice if it does certifies appeals court of first appropriate McQuiggin, 133 S.Ct. mand.” “newly contains discover- that the Florida, Holland v. 560 U.S. (quoting that, if and viewed proven ed evidence 177 L.Ed.2d 130 S.Ct. whole, be as a would light of the evidence (2010)). McQuiggin, Supreme In by clear and convinc- sufficient to establish lim analyzed Congress whether had Court factfinder that no reasonable ing evidence prevent courts’ inherent ited the guilty the movant would have found by enacting AED- miscarriage justice of the com- thus alters offense.” The statute limitations on one-year statute of PA’s justice exception in miscarriage of mon law acknowl § Id. The Court petitions. (1) by changing the standard ways: two in AEDPA that provisions that the edged likely than not” to “clear from “more bars procedural to evade petitioners allow evidence,” by requiring convincing convincing evi clear and by presenting appropriate from the preauthorization contain a miscar of actual innocence dence appeals. court of exception justice exception, but riage of prepon modified from the that has been 2255(h) a modified Because contains at common employed standard derance justice exception, the dis- miscarriage of provisions, Congress those law. Id. For com- here could not invoke the trict court longer clearly may intended that courts no justice miscarriage exception. of mon law miscarriage their common law invoke Instead, in the bringing his Motion before authority petitioners to allow justice required Williams was Mr. Id. procedural the relevant bar. bypass 2255(h)’s procedures to first obtain by Instead, exception apply courts must from this court. Williams certification contrast, by Congress. Id. as modified certification, and as result did not obtain provi those governed “In a case not jurisdiction to va- court lacked miscarriage law] ... the [common sions a miscar- prevent cate his convictions pas justice exception survived AEDPA’s justice. riage Because intact and unrestricted.” Id. sage sum, ability to exer- In a district court’s governing of limitations AEDPA’s statute has been con- powers its inherent cise was silent as to petitions first habeas acts by AEDPA where the court strained justice exception, Su- miscarriage 1077 (“The petitioner’s appeals may on a successive motion. Be- court of authorize the the district court acted on Mr. filing cause second or successive application invoking powers, in its it only Williams’s Motion if it application determines in AEDPA. did so contravention of prima showing We makes a facie ap- that the therefore reverse the district court’s deci- plication requirements satisfies the of this jurisdiction.14 subsection.”). sion for lack of In deciding whether the evi Ap- C. We Construe Mr. Williams’s supports dence as whole Mr. Williams’s pellate Brieñng Request as a claim, factual innocence we “must consider File a Second or Successive Peti- evidence, new, all the old and incriminating tion, which WeGrant in Part. exculpatory, regard without to wheth Having concluded that Mr. necessarily er would be admitted under § Motion was a successive 2255 rules of admissibility govern that would petition and the district court lacked Bell, 518, 538, trial.” House v. 547 U.S. relief, jurisdiction grant requested 2064, 165 (inter L.Ed.2d we now exercise our discretion to treat his quotation omitted); nal marks United appellate request brief as a for authoriza MacDonald, States 641 F.3d § tion to file a successive motion. (4th Cir.2011) (adopting the House rule for Nelson, See United States v. 465 F.3d factual innocence determination (10th Cir.2006) (recognizing 2255(h)(1) § requires). engaging this that we have the discretion to treat a inquiry, may we also consider the evidence petitioner’s appeal appellate briefing presented to the district court at the evi- implied application as an for leave file a to' dentiary hearing.15 Each parties motion); Boone, Spitznas represented by counsel and the testi (10th Cir.2006) (same). F.3d 1219 n. 8 mony was taken under oath before the qualify permission To for to file a succes district court. petition, present sive Mr. Williams must that, Considering all of the “newly evidence proven discovered evidence if record, the total we light proba and viewed in “must make a of the evidence as a whole, would be bilistic determination about what reason by sufficient to establish able, jurors convincing properly clear and instructed would do. evidence no rea sonable factfinder would The court’s function not to have found the is make guilty independent movant of the offense.” factual 28 U.S.C. determination about 2244(b)(3)(C) 2255(h)(1); occurred, likely see also id. what but rather to assess cases, 14. appeals Because we conclude the Motion was a civil cases to from habeas petition second or successive habeas and that petition even where the habeas was filed in Motion, reject the court acted on the we can case). underlying the defendant’s criminal argument Mr. Williams’s alternative that the Here, government ap- filed its notice of government's appeal untimely. By acting peal fifty-nine days after the district court Motion, on the the district court acted exclu judgment, timely entered which was under sively judgment as a habeas and its 4(a)(1)(B). Rule granted Mr. Williams habeas relief. The tim ing appeal judgment gov is therefore Although we have concluded the district Appellate erned Federal Rule of Procedure lacked to act on Mr. 4(a)(1)(B), requires appeal a notice of Williams’s successive for habeas re- sixty days to be filed within in a civil case lief, developed we consider the evidence party. where the United States is a See also judicial in the interest Pinto, United States v. efficiency. 1993) (applying sixty-day filing period Cir. vehicle, the offi- and person rea Mr. Williams’s the evidence on of likely impact House, 538, methamphetamine, 547 U.S. of jurors.” grams cers seized 25 sonable (citations quo and internal $622, Tulsa Police Officer pager. and a omitted). “does Our review tation marks prelimi- Gray testified at the state John certainty about the require absolute consented nary hearing that Mr. Williams innocence.” Id. petitioner’s guilt Mr. was arrested to the search. Williams nature of at the scene. fact-intensive Because to detail the evi- pause inquiry, this we chal- search Mr. Williams The other presen- in Mr. Williams’s dence referenced 22, 1997, after Mr. July on lenges occurred (PSR), guilty report investigation tence his On that was released on bond. Williams has introduced he and the evidence plea, officers, including Officer day, Tulsa Police analyzing before attacking his conviction Henderson, stopped Gray and Officer Jeff Mr. evidence entitles this whether by Mr. Williams. Ms. a vehicle driven under to a certification Williams individual, Doyle Lanning and a third Owens, were in the car with Mr. “Skip” Evidence as Whole 1. The - discovered metham- Officers Williams. evidence contained begin with the We handgun, and other phetamine, a loaded criminal from Mr. Williams’s 1998 the PSR Lanning Ms. contraband the vehicle. The PSR discusses five prosecution. Mr. claimed the firearm and and Owens in the that resulted and seizures searches belonged to Mr. methamphetamine Mr. Mr. against evidence Williams. again officers Law enforcement Williams. challenged two of those has not Williams arrested Mr. Williams. searches, occurred at his residence 2, 1997, January 1996 and September on developed at the 2012 The evidence methamphetamine, laborato- and revealed evidentiary hearing called postconviction precursor chemicals as- ry equipment, some of the information con- question into manufacturing methamphet- sociated with in the 1998 The district court tained PSR. associate, and an amine. Mr. Williams testimony multiple wit- received from Farmer, during arrested Eileen were nesses, provided particularly four of whom warrant on Janu- execution of the search relevant information. 2,1997. ary First, Lanning Ms. testified at the 2012 however, has, challenged Mr. Williams 12, 1997, that on she was hearing March related to searches some of the evidence buy alone and no controlled took home July March 12 place that took apartment at the she shared with place 12, police officers con- 1997. On March Lanning testified that Mr. Williams. Ms. buy and then searched- ducted a controlled apart- officers searched her police when Lanning,16 Katherine apartment of they metham- day, ment that did not find then-girlfriend. According to But she claimed that Officer phetamine. PSR, grams revealed 2.5 the search Gray produced bag methamphetamine a small amount of mar- methamphetamine, planned and that she believed he to use revolver, That ijuana, pager. to frame Mr. Williams. officers discovered Mr. day, police same July Lanning Ms. also described nearby parking lot with a Williams at a Gray and stop by traffic Officers Following a search disabled vehicle. name, proceedings. changed the record of the Lanning has since her with 16. Ms. consistency prior name for but we use her original Henderson. She testified that after the statements he had made to the vehicle, Mr. stopped officers Owens DEA agents, and instead testified that he never, agitated because he a firearm became had had seen Mr. Williams manufacture pants. tucked into the front of his Mr. methamphetamine and had never bought pulled Owens the firearm out of his cloth- drugs from him. Mr. Fillmore also denied ing, and officers later recovered from providing evidence'that could support the the vehicle. After the officers recovered drug quantity attributed to Mr. Williams firearm, they Lanning asked Ms. who in the' PSR. When asked about written truthfully owned it. she reported When reports Agent DEA Leon Francis made of Owens, belonged the firearm to Mr. Offi- Fillmore, his interviews with Mr. Mr. Fill- (cid:127) Gray cers and Henderson detained her more making many denied of the state- question and continued to her about the Agent ments Francis had included in the ownership They of the firearm. told her reports. in she was trouble and asked if she wanted Finally, Agent Francis testified at the go prison. The officers indicated she 2012 hearing. He claimed that his investi- prison could avoid if she said the firearm gation included approxi- interviews with belonged Lanning to Mr. Williams. Ms. mately seventy witnesses and that these eventually complied; she stated the fire- interviews established that Mr. Williams Williams, arm belonged to Mr. even had manufactured methamphetamine and though she knew it did not. taught had others how to manufacture it. Second, Farner, Edward who had But Agent Francis admitted to a number informant, Gray’s served as Officer testi- irregularities regarding his reliance on postconviction fied at the 2012 evidentiary Mr. Fillmore anas informant. For exam- hearing. Gray, He stated Officers Harold ple, Agent Francis did not recall how Mr. Wells, and him Henderson coerced into Fillmore knew to contact the DEA. And he working as a confidential informant from recalled that seventy none the other 1994 to 1999. At point, one the officers witnesses knowing mentioned Mr. Fillmore target ordered Mr. Farner Mr. reported or’ that Mr. Fillmore awas mem- Williams, informant, potential first as a Rather, conspiracy. ber of the Mr. Fill- potential and later as a defendant. Mr/ more’s relationship began with the DEA Farner testified that he did not make when Mr. Fillmore in “walked off the buy apartment controlled at the by shared implicated street” and drug himself Lanning and Mr. Ms. Williams on March conspiracy. Notably, Mr. Fillmore did not 12, 1997, represented in the search war- ask for anything exchange coop- for his rant affidavit. addition, eration. Agent Francis admit- witness, Fillmore, Greg The next ted he did not question Mr. Fillmore about another informant who worked for Officers knowledge his of the manufacturing pro- Gray and Henderson Mr. Williams’s cess or any independent otherwise make Farner, case. Like Mr. he claimed the effort to corroborate Mr. story. Fillmore’s him working officers coerced into for them. Fillmore testified he was forced 2255(h) Application Stan- one of the officers to call DEA agents dard to Mr. Evidence having helped to lie about Mr. Williams above, Considering the evidence detailed methamphetamine. manufacture Mr. Fill- we agree more also testified that DEA with the district court that Mr. he sensed agents expecting were call implicating prima showing his Williams has made a facie Mr. Williams. Mr. Fillmore recanted the of factual respect innocence with to his circumstantial methamphetamine provides disagree But we conviction.

firearm actual inno a defendant manufactured has established evidence that Mr. Williams conspiracy to his respect And he was arrested methamphetamine). with cence part We convictions. possession drug manufactured an associate who with charges court on the ways with supports an methamphetamine, which sold - conviction, large in the firearm- other than con- involved that he was inference hold Mr. Williams we must part because spiracy. than that evidentiary standard higher of factu- prima facie case Mr. Williams’s previous court. As by the district applied by Agent innocence is also undermined al court considered district ly explained, testimony and Mr. Williams’s Francis’s through the lens of claims Mr. Williams’s testified Agent allocution. Francis plea miscarriage justice of ex law the common many information from as that he received petitioner required ception, which witnesses, all of whom seventy other only by pre innocence actual establish n Mr. information related provided McQuig of the evidence. See ponderance conspiracy in the involvement — Perkins, —, U.S. gin v. that Mr. supported his conclusion and (2013). 1935, But 1924, L.Ed.2d 1019 185 at least conspired to manufacture Williams to file a successive authorization to obtain These kilograms methamphetamine. framework, Mr. under AEDPA’s information detailed provided witnesses actual innocence must establish Williams methamphetamine conspiracy’s about the convincing and evidence. by clear network, many and observed distribution 2255(h)(1). U.S.C. distributing meth- personally Mr. Williams Conspiracy a. Conviction only pro- has amphetamine. Mr. Williams directly contradicting two duced evidence turn first to Mr. Williams’s

We Fill- accepting the individuals’ conviction. Even of these conspiracy statements —Mr. any evi court’s conclusion That leaves dozens more and Mr. Farner. Gray, from Officers obtained dence Agent upon Francis relied of witnesses Wells, Henderson, including and the state if conclusions. Even Mr. reaching his Mr. Farner of Mr. Fillmore and ments Agent all of had shown that Williams conspiracy, Mr. Williams in the implicating unreliable under reports Francis’s were unreliable, necessarily Williams has preponderance standard conspiracy con met his burden. The applied, he has not demonstrated solely with evi supported viction is not entirety of problems with the pervasive Law from these tainted sources. dence that could Agent investigation Francis’s also recovered evi officers enforcement evidence, show, by convincing clear and a con connecting Mr. Williams with dence juror any credit that no reasonable would to manufacture and distribute spiracy of these statements. executing when search methamphetamine raised seri Although Mr. Williams has 9, September at his residence warrants Gray, Officers questions ous about whether January This included and Wells, and Henderson manufactured false laboratory equipment, methamphetamine, evidence, ample there is still untainted evi chemicals, scales, objects precursor remaining sup the record dence methamphetamine residue. containing Cf. conspiracy Mr. Williams’s conviction. ports Tolman, States v. United McCalister, 545 Fed. States v. See United Cir.1987) (holding that (10th Cir.2013) (unpub Appx. laboratory chemicals and possession of lished) (holding the involvement Officers necessary to manufacture equipment Gray and in a Wells conspiracy defendant’s able to the entire conspiracy. result, As a per case does not se meet the clear and Mr. Williams has not met his burden of convincing standard for a successive mo- prima making facie case of actual inno- tion where a defendant has not shown cence for drug possession, deny we their involvement tainted all witnesses authorization to file a him). against We hold that Mr. Williams motion attacking those convictions. heavy has not met the of producing burden Firearm that,

new c. Conviction evidence' if proven, would show by clear convincing evidence that no Finally, we address Mr. Williams’s juror reasonable would him convict of con- firearm conviction. We are persuaded spiring manufacture and distribute that Mr. Williams has met his burden of methamphetamine. Therefore, he is not establishing a prima facie case actual authorized to file a successive 2255 mo- innocence with to respect this conviction. tion attacking conspiracy his conviction. There are four facts that Mr. support (1) Williams’s firearm conviction: Officers b. Drug Possession Convictions Gray and Henderson discovered a firearm Likewise, Mr. Williams has not (2) in Mr. vehicle; Mr. Owens asserted actual innocence respect with to stated gun belonged to Williams; Mr. his convictions' on the drug possession (8) Ms. Lanning gave a statement that the charges. Although presented he has testi Williams’s; (4) firearm was Mr. and Mr. mony that Gray Officer appeared to willing pled Williams guilty to possessing the fire plant methamphetamine himon and testi arm. mony that Officers Gray and Henderson Ms. Lanning’s testimony at the 2012 were willing to coerce witnesses into lying postconviction evidentiary hearing pro- who contraband, about possessed Mr. vides exculpatory that, evidence if proven, Williams has not that claimed Officers undermines much of this incriminating evi- Gray, Henderson, Wells, or planted others dence: And the district court found Ms. methamphetamine on him on March 12 or Lanning credible. If her new version of July 1997. Nor has he claimed that he true, the facts is it also undermines not Mr. possess did methamphetamine on Owens’s statement made to Gray those dates.17 If Officers anything, Mr. Williams’s and Henderson gun most recent that the belonged actually affidavit to implies his guilt Mr. with Williams. According to respect both to Lanning, counts Ms. because he asserts Mr. that his Owens agitated sentence became should have nervous been using calculated when only police stopped the metham vehicle and phetamine seized on those dates op then removed the gun from his waistband posed to the methamphetamine and placed attribut- it in the car. A reasonable 17. Mr. produced has Williams evidence chal- methamphetamine. contain legality lenging the Lanning’s search of Ms. apart- of a admissibility search and any seized 12, 1997, ment on March and the items Offi- is not analysis evidence relevant to our under Gray cer allegedly during 2244(b) 2255(h)(1). §§ discovered that United States Cf. search. But MacDonald, Mr. Williams’s conviction (4th was v. not based Cir.2011) on evidence from that search. In- (explaining that we must consider stead, possession his March 12 evidence, conviction was “all including alleged that methamphetamine based on found in his illegally vehi- have been tenably admitted and that cle Gray when Officer nearby it in a searched wrongly claimed have been excluded or to parking search, Regarding lot. that Mr. have only become available after the trial’’ alleged only (alterations Williams has that the quotation search and internal marks illegal, his vehicle omitted)). not that the vehicle did to file Mr. authorization GRANT Williams concerned about he was

inference court posses- if with the district charges caught facing criminal Thus, posses- conviction for attacking Mr. Owens had his motion of a firearm. sion statement fabricate his sion of firearm. strong motive to Williams. belonged Mr. that the firearm BACHARACH, Judge, Circuit in Mr. was discovered the firearm That dissenting. guilty pled and that he Williams’s vehicle (1) majority agree I with an infer- support it both possession of motion, alleged fraud Williams’ the fire- possessed that Mr. Williams ence sec- constituted unauthorized Gorman, 312 States arm. United Cf. (2) motion, the district ond-or-suceessive Cir.2002) (the (10th pres- F.3d jurisdiction to would have lacked vehicle in a defendant’s ence of a firearm motion, the district grant this possession); constructive can establish raise fraud on sponte to sua had States, F.3d v. United Vanwinkle disagree I respectfully But the court. Cir.2011) (same). agree But we respects: majority two with Lanning’s court that Ms. the district with Thompson not af- provides compel- does account of events Calderon recent Mr. Owens owned our determination of whether fect ling evidence acting concluded court was sua And the district court firearm. explanation for enter- sponte. that Mr. Williams’s agreement he was plea the ing into court invoked fraud on The —that light in of credible evidence coerced—is sponte. the court sua pattern of Gray’s and Henderson’s Officers invoked fraud on district court Because the Mr. Far- activity. Recall that fraudulent sponte and had the power the court sua being Mr. Fillmore testified ner and so, Accordingly, affirm. I re- do I would making into false by these officers coerced spectfully dissent. - numerous on occasions. statements Fraud on Court I. Power to Invoke short, Lanning’s testimony re- Ms. Sponte Sua charge provides the garding the firearm judiciary judgment can vacate a sua at- missing in Mr. link through it was obtained sponte when drug convic- conspiracy tack on his and Co. fraud on court. Hazel-Atlas Glass pre- has Specifically, Mr. Williams tions. Co., 238, Hartford-Empire 322 U.S. that, if newly discovered evidence sented (1944), 244-45, 997, S.Ct. 88 L.Ed. 1250 64 of the evidence light and viewed proven by grounds on other Standard overruled whole, to establish as a would be sufficient States, U.S. Co. Cal. v. United 429 Oil of that no by convincing and evidence clear (1976). 31, 17, This 50 L.Ed.2d S.Ct. found factfinder would have reasonable injury party to a goes beyond- fraud guilty possessing him a firearm. There- injures “integrity it because fore, to file of a we authorize Mr. Williams 246, Id. at 64 S.Ct. 997. judicial process.” attacking' his § 2255 motion Thus, power fraud-on-the-court does conviction. firearm and depend filing on the of motion IV. CONCLUSION may power this sua “the assert Buck, 281 F.3d sponte.” United States reasons, RE- we foregoing For (10th Cir.2002); Cham see judgment court’s and VERSE NASCO, Inc., 32, 44, 111 501 U.S. bers v. with instructions dismiss REMAND (“[A] 115 L.Ed.2d jurisdiction. We also S.Ct. case for lack of indepen- court has the to conduct an advanced a second-or-successive investigation in order to petition. dent determine fraud.”); been the whether has victim 2. Part III.B “significant examines the (ac- Reply Br. at 6 see also Government’s limits” on federal uover that a can knowledging invoke fraud petitions habeas and creates a rule itself’). sponte protect on the court sua “to for when circuit courts can sua sponte recall their mandates. contexts, In certain ability the courts’ sponte may by act sua be .affected 3. Part applies III.C the new rule. Antiterrorism and Penalty Effective Death 553-66, 118 Id. at S.Ct. 1489. Act’s restrictions second-or-successive The first section contains ap- the rule judgment. motions to vacate a criminal 28 plied by today’s majority regarding when a 2255(h) (2012); U.S.C. United States v. court has acted sua sponte. But the sec- Nelson, Cir. ond section any impact disclaims on fraud- 2006). majority, Like the I believe the Act on-the-court cases. prevent grant would a district court from Calderon’s procedural history helps us motion, ing a second-or-successive understand the first section of the opinion. relies on fraud on the- in the absence Thompson, prisoner, state filed a Maj. of certification our court. Op. See petition habeas alleging ineffective assis majority at 1072-73. As the acknowl tance of counsel. Id. at edges, Act apply does not when the petition 1489. The granted part. sponte. district court acts sua Id. at 1070- appeal, Id. On a Ninth panel Circuit re view, my 71. In acknowledgment this re part versed in in part. affirmed Id. at quires us to affirm: The district court 545-46, 118 S.Ct. 1489. acting sponte, stated that it was sua Mr. Thompson filed a for re we should take the court at its word. hearing a suggestion for rehearing en banc, which was circulated to all active Interpretive A. Calderon’s Rule at 546, judges. Id. 118 S.Ct. 1489. The majority The discounts 1997, panel issued an order in March deny court’s characterization based on Calderon ing petitions. the Id. 538, Thompson, 553-56, 523 U.S. 1489, (1998). S.Ct. 140 L.Ed.2d Maj. 1997, July In Mr. Thompson filed a sec- atOp. 1073-75. But Calderon does not mandate, ond motion to recall the a judge’s sponte address sua invocation of was on new based evidence. Id. This mo- fraud on the court. tion constituted a pe- second-or-successive tition, triggering the Antiterrorism and Ef- ability Calderon involves a circuit court’s Act, fective Death Penalty and the Ninth to recall á sponte mandate sua based on Circuit denied relief. Id. at 118 S.Ct. judges’ docketing errors. Calderon v. 1489. 538, 547-48, Thompson, 523 U.S. (1998). 140 L.Ed.2d 728 In Part III later, days Two the court full voted to opinion, Supreme the the Court ad- (issued original recall its mandate in

dresses whether the recall proper, was 1997), claiming March acting was discussing in the issue three sections: sponte response sua rather than in to the

1.Part analyzes III.A whether request July the in 1997 to recall the mandate. (1) 547-48,

Ninth sponte Circuit acted sua in at deciding Id. 118 S.Ct. 1489. In recalling mandate, the mandate or explained recalled to recall the the court the mandate arguments because of judges request two of the failed to en dis- is not first federal mis- of his docketing because review banc pre- The matters 118 S.Ct. 1489. consideration of proved at Id. takes. merits and de- the considered Thus we deem filing. court later in a later sented 548-49, 118 Id. at grant relief. cided to appli- acted on his first to have the court S.Ct. 1489. one. than a successive cation rather granted certiorari. Court Supreme 554, 118 1489. at S.Ct. Id. to determine was step first The Court’s interpretive announces passage This had Circuit the Ninth whether truly when a court is determining rule for 553-54, 118 Id. mandate. at recall the mandate. recalling in acting sponte sua recall of Circuit’s The Ninth 1489. S.Ct. case, on this majority In our the relies the implicated have would the mandate the district court to conclude that passage Penalty Death Effective Antiterrorism it consid- sponte because sua did act on had been based action Act the court’s if in Mr. presented evidence ered claims and July in See filing 1997. Thompson’s ' motion. second-or-successive Williams’ the Act Thus, whether to determine id. Maj. at 1073-75. Op. See to deter- Supreme Court had applied, truly the Ninth Circuit mine whether rule is interpretive But the reach sponte: sua acting III, Part section of qualified by the second 2244(b) matter, applies § a textual As ‘We Supreme Court cautioned: when the ato pursuant the court acts only where be clear about circumstances should This carries “application.” prisoner’s This .... is not in this case.... we address a motion to for cases where implications court, calling into upon fraud a case of but the pending, mandate is recall judg- very legitimacy of the question the mandate on its recalls the instead Calderon, 523 U.S. ment.” are these cases initiative. Whether own S.Ct. 2244(b) un- depends on the subject to If, action. of the court’s derlying basis Impact on Fraud B. Calderon’s mandate, court con- recalling Court presented claims or evidence siders new section cre- the second The disclaimer for habeas application of the rule question scope about the ates relief, regard the court’s proper it is majority. the con- by the Given relied on on that application. action as based disclaimer, two 2244(b)(2) interpretations text cases, irre- applies these possible. character- are of whether spective sponte. action as sua the izes is that the interpretation disclaimer One case, however, the Thompson’s In case, the including the entire applies to reciting in specific Appeals Court the analysis of whether first section’s the basis of it acted on exclusive that If this sponte. acted sua Appeals Court petition. first federal Thompson’s habeas correct, in Cal- nothing is interpretation of its action characterization The court’s to a applied be fraud-on-the- deron should not, course, prove does sponte as sua dis- Supreme the Court’s and case considered had the court point; this judge acts sua when a cussion about Thomp- in presented claims or evidence our decision. not affect sponte does have filings, its action would later son’s is that interpretation The second application, based on successive been only regard- to rule applies disclaimer 2244(b). § subject would be so court can recall appellate ing when court’s reci- Thompson’s in case the But (the analysis in the sponte mandate sua basis it acted on the exclusive tation section). 2244(b) interpretation subject second If this is depends on the un- derlying If, correct basis of the court’s action. (cid:127) mandate, in recalling the the court con- Supreme reasoning Court’s about - siders new presented claims or evidence judge sponte governs, when a acts sua in a application for habeas relief, it (cid:127) proper regard is the court’s judge did not act sua action as application. based on that sponte because he considered evidence cases, 2244(b)(2) these applies irre- in and claims raised Mr. Williams’ sec- spective of whether the court character- ond-or-successive motion. izes the sponte. action as sua can in Reasonable minds differ inter- Calderon’s, Id. at (emphasis 118 S.Ct. 1489 add- preting disclaimer. For two ed). Through this language, Supreme reasons,' however, I believe the Calderon great pains Court took to make clear that applies disclaimer to the entire case: sponte sua action it was testing was (ex- 1. Supreme language The Court’s mandate, recall of a opposed to some- plaining how to determine whether a thing else. The specificity of this language acting court is sponte) explicitly sua section, in the first combined with the ties the rule to situations where an section, disclaimer the second suggest appellate recalling court is a man- Supreme limiting Court was its date. interpretive rule to the recall of a man- 2. The presented issue when a district date. court claims to invoke fraud on the (the here) sponte court sua issue is 2. Distinctions Between the Issue in meaningfully different from the is- Calderon and this Case presented sue an appellate when imperative here, This limitation is court claims to recall a mandate sua the Supreme Court had powerful reasons sponte petitions the face of two (1) distinguish ability between all courts’ (the Calderon). issue in sponte to sua invoke fraud on the court reasons, For both I do not believe Calder- (which here) is at issue an appel- interpretive on’s applies rule when a court late court’s desire to recall its mandate acting states that it is to prevent fraud on (which Calderon). was at issue Thus,

the court. we must take the district majority points The out that when court at its word when it acting said was defrauded, judgment never sponte. sua (stat- Maj. becomes final. Op. See at 1071 Specificity Supreme Court’s ing that historically enjoyed courts have Language to invoke fraud on the court Supreme Court stressed that it was judgments procured because through dealing with recall of the mandate when final); fraud had never become see also explaining the test to determine whether Comm’r, Kenner v.

the Ninth Circuit was acting sponte: Cir.1968) sua (“We think ... it can be 2244(b) matter, §

As a applies textual produced by reasoned that a decision fraud only pursuant where the court acts ato on the court is not in a essence decision prisoner’s all, final.”). “application.” This carries and never becomes Because implications final, for cases a judgment where motion to the never became the court pending, recall the mandate is through but the can act its over the Otherwise, court original instead recalls the mandate on its proceeding. the case own initiative. Whether these cases are in perpetuity. would continue Effective Death Antiterrorism and that the contrast, court transfers appellate

In designed protect against by issuing Penalty Act is jurisdiction to the Sales, Inc., not the petitioner, judicial In re Sunset abuse mandate. See a Cir.1999). (10th Accord- of a fraud on The perpetration State’s 195 F.3d court). mandate sua recalls its a court ingly, when finality on the of. impinges sponte, view, given little my Congress has relationship to another its

judgment and an intent to restrict the estab- indication of a absent when court way that is court in a sponte of a court to act sua power lished pow- fraud-on-the-court its merely invokes court. In the ab- fraud on the address proceedings that to continue sponte er sua repeal pow- of this congressional sence had never terminated. er, enjoy the court continues to a district for the Su- accounts This difference on it- necessary power to address fraud to determine whether effort preme Court’s regardless petitioner of whether the self— first acting on the the Ninth Circuit motion to va- files a second-or-successive peti- the second habeas habeas judgment. cate the on impor- took The determination tion. Effec- Antiterrorism and tance under the Characteriza- II. The District Court’s Act the first Penalty because tive Death Action tion of its already had proceedings round of habeas may in- that a court Having concluded terminated. sponte on the court sua even voke fraud Here, to determine attempting arewe motion, resulting filing of a after the , acting court was whether exer- is whether the district court issue or the sixth criminal case original majority acknowl- power. cised that proceed- post-conviction round of federal it was the district court said edges if the majority acknowledges, ings. As the Maj. Op. at 1075 acting sponte. sua criminal had been .proceedings original (“Here, claimed it acted the district court court, those by a fraud on tainted a fraud on the sponte sua to correct terminated. See were never proceedings court.”). by the district I would abide (stating that when there Maj. at 1071 Op. characterization of its action. court’s court, judgment never a fraud on the pleaded guilty to federal Mr. Williams final). Surely the district became charges multiple post- and filed criminal whether the to determine had the motion, motions. His sixth conviction ended. case had ever original criminal nullify a motion to withdraw and styled as prevents the court Because fraud court’s guilty plea, led to the district his no proceedings, tainted termination of the on the court. Ulti- concern about a fraud statutory provi applied court has ever however, its mately, the court invoked peti governing second-or-successive sions power sua rath- sponte fraud-on-the-court remedy a fraud judge’s power tions to Mr. mo- response than in to Williams’ er Sec’y Gonzalez on the court. See tion. Corrs., 1253, 1275 Dep’t of district court did not be- Initially, the Cir.2004) Calderon, (stating that motion would be con- lieve Williams’ that a mandate recognized Supreme Court based on his second-or-successive sidered can be recalled when in a habeas case the court. See of a fraud on allegations creating there was a fraud on (“[B]e- II, App., vol. at 359 Appellant’s legitimacy judg question about the relief based on Workman, Defendant seeks cause ment); Douglas see also claim, (10th Cir.2009) it is distinct upon the court (noting fraud F.3d

1087 governed from a and is not strued habeas Williams’ Motion to Withdraw and Death by Antiterrorism and Effective [the Nullify Guilty Plea as a fraud on the court Act].’’). result, Penalty As a the court motion.” Id.1 proceed. during But allowed the case Nothing in the district analysis court’s is the proceedings, changed ap- the court its inconsistent with a sponte sua invocation proach newly opinion based on a issued Thus, of fraud on the court. I would Baker, our court: United States conclude that the court invoked fraud on (10th Cir.2013). F.3d There we held the court sponte, sua as it the had authori- alleging that “a motion fraud on the court ty to do. in a criminal proceeding defendant’s must be considered a second-or-successive col- III. Merits

lateral attack because asserts or reas- challenge to the serts defendant’s under- majority notes, As the government the Baker, lying conviction.” at 1207. F.3d arguments waived regarding the district correctly The interpreted district court application court’s by fraud on the court Baker to foreclose consideration of Mr. failing to raise arguments these until the Williams’ motion unless we were to author- reply Maj. 9; brief. Op. at 1070 n. see ize second-or-successive motion under Comm’r, Wheeler v. 521 F.3d II, Appellant’s App., 2255. vol. n. (10th Cir.2008) (“[IJssues by ap raised an pellant for the first time appeal in a continuing approach Instead of with the reply generally brief are deemed Baker, by now forbidden the district court waived.”).2 I reject Because would initiated consideration of the issue under government’s jurisdictional arguments, I authority its to invoke fraud .on the court analysis would end the there and affirm. so, sponte. doing sua the district court distinguished its order from the one in IV. Conclusion Baker, stating footnote five: “The in- long recognized We have ability of a distinguishable stant case is due to the fact Court, defendant, a judgment procured it is the not the that has vacate authority invoked its inherent con- through and has fraud. The court in- brief, government questions validity opening government 1. The of 2. In its refers distinction, arguing being this to the the relief merits three sentences: (vacatur conviction) sought is the same police Whether or not there was miscon- regardless remedy being of whether this is during investigation, duct there was no requested by Mr. Williams or the district during pro- fraud on the district court Appellant's Opening court. Br. at 40. This ceedings that led to Williams’ convictions. distinction is dubious and It immaterial. is solely His convictions rested on his detailed Velief; request dubious because courts do not written and oral admissions of his factual they grant decide whether to The relief. dis- guilt. The district court’s fraud-on-the- tinction is immaterial because Baker did not ruling wrong on the merits. address whether a court could invoke fraud Appellant's Opening Br. at 34. These three sponte party on the court sentences, sua after a files a lacking any explanation or authori petition. majority second-or-successive ty, adequate development do not constitute (“Mr. agrees. Maj. Op. See at 1073 Williams' argument Rojem on the merits. See Gibson, is correct that [the Antiterrorism and Effec- 1141 n. 8 Cir. Penalty 2001) tive Death will not constrain a (stating argument Act] that an was waived authority employ equi- court’s its inherent appeal inadequate in a habeas because it was powers acting ly developed). table if the court is on its own argument, govern In oral initiative, upon application than opening rather ment conceded that its brief had not petitioner.”). Arg. filed addressed the merits. Oral 7:52-8:37. empowered as it was power, voked that

do. the court whether not decide

We need government’s con-

correctly perceived government because the fraudulent

duct as In- the merits. arguments

waived its solely on a

stead, appealed government

jurisdictional ground.- juris- judge lacked

Though on Mr. relief based grant

diction motion, hap- not what

Williams’ judge contrary, the district

pened. To the sponte to sua his inherent

exercised on his own court. Accord-

remedy a fraud majori- affirm. Because the I would

ingly, so, I respectfully to do

ty declined has

dissent. Jr.; COOK; Schierkolk,

Merilyn William Bartlett; Schierkolk; Richard

Delores Bartlett; Babb;

Sally Lorren Ger- Plaintiffs-Appellants, Babb,

trude Rice; Western; Bank Dean

Michael Deimer; Deim- L. Rhonda J.

Thomas Sandoval;

er; Peggy Stephen J. San- Plaintiffs,

doval, INTERNATIONAL COR-

ROCKWELL

PORATION; Dow Chemical Com- Defendants-Appellees.

pany, 14-1112.

No. Appeals, Court of

United States

Tenth Circuit. 23, 2015.

June

Case Details

Case Name: United States v. Williams

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jun 23, 2015

Citation: 790 F.3d 1059

Docket Number: 14-5070

Court Abbreviation: 10th Cir.