F IL E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                       U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                            August 23, 2006
                                      T E N T H C IR C U IT
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

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

           Plaintiff-Appellee,

 v.                                                            No. 06-6150
                                                           (D.C. No. CR-99-2-L)
 TRENTON M cDA NIEL,                                           (W .D. Okla.)

           Defendant-Appellant.



                                 O R D E R A N D JU D G M E N T *


Before K E L L Y , M cK A Y , and L U C E R O , Circuit Judges.


          This case is before us on direct appeal of the district court’s denials of

Trenton M cDaniel’s petition for a writ of coram nobis and m otion to

recharacterize proceedings, through which M cDaniel seeks to attack his crim inal

conviction and sentence. M cD aniel now appeals, seeking to proceed in form a

pauperis (“IFP”). W e G R A N T his m otion to proceed IFP, and address his

petition on the m erits. For substantially the same reasons set forth by the district



      *
      The case is unanim ously ordered subm itted without oral argum ent pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgm ent is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgm ents; nevertheless, an order and judgm ent m ay be cited under the term s and
conditions of 10th Cir. R. 36.3.
court, we A FFIR M the denial of both M cDaniel’s petition for a writ of coram

nobis and his motion for recharacterization.

      Pursuant to a plea agreement, M cDaniel pled guilty to one count of

distribution of crack cocaine in exchange for dism issal of the remaining four

counts against him. On M ay 27, 1999, M cDaniel was sentenced to 216 m onths’

incarceration. There was no direct appeal of his conviction or sentence.

However, M cDaniel filed his petition for a writ of coram nobis on October 24,

2005. On Novem ber 15, 2005, M cDaniel filed a m otion to recharacterize his

coram nobis petition as a “Habeas corpus type petition for post-conviction relief.”

Relying on United States v. Torres, 

, 1245 (10th Cir. 2002), which

held that a prisoner may not challenge a sentence or conviction for w hich he is

currently in custody through a w rit of coram nobis, the court denied M cD aniel’s

request for a writ of coram nobis. Additionally, the court declined to

recharacterize his petition as a 28 U.S.C. § 2255 habeas petition because such a

claim would be barred by the statute of limitations. The district court also denied

M cD aniel a certificate of appealability (“COA”) “to the extent that defendant’s

action could be characterized as a motion pursuant to 28 U.S.C. § 2255.”

      On appeal of a denial of a writ of coram nobis, we review de novo the

question of whether a district court applied the proper legal standard, and review

the ultimate decision to deny the writ for an abuse of discretion. See United



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States v. M andanici, 

, 524 (2d Cir. 2000). Because M cDaniel is in

the custody of the Bureau of Prisons serving his federal sentence, he may not

challenge his conviction or sentence through a writ of coram nobis. Therefore,

the district court’s denial of such a writ is affirmed. See 

.

        The district court also declined to recharacterize M cDaniel’s coram nobis

petition as a § 2255 petition. W e have generally disfavored such

recharacterization for pro se prisoners because of our concern that construing a

motion as a § 2255 petition would lead courts to bar subsequent habeas petitions

as successive. See United States v. Kelly, 

, 1242 (10th Cir. 2000).

W e have required that district courts inform pro se prisoners of the potential

adverse consequences of such a recharacterization and give them the opportunity

to withdraw their motion. 

case, the district court declined to

recharacterize M cDaniel’s petition on the basis that even if his petition had been

recharacterized, it would have been barred by § 2255’s one-year statute of

limitations. 1 M cDaniel filed his motion more than six years after his conviction

became final.




   1
     M cDaniel’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective D eath Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 

, 1282 n.1
(10th Cir. 1999) (citing Lindh v. M urphy, 

(1997)).

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      Four of the five claims in M cDaniel’s petition for a writ of coram nobis

were based on issues which should have been raised on direct appeal.

Accordingly, M cDaniel must show cause for not raising these issues on direct

appeal and actual prejudice resulting from the errors alleged, or must show that a

fundamental miscarriage of justice would result if his claim is not addressed.

United States v. Riddick, 

(10th Cir. 1997). He makes no such

showing. In his final claim, M cDaniel contends his sentencing violated Blakely

v. W ashington, 

(2004), and United States v. Booker, 

(2005). W e have held that neither case applies retroactively to cases that became

final prior to their issuance, such as M cDaniel’s. United States v. Bellamy, 

, 1184 (10th Cir. 2005); United States v. Price, 

, 849 (10th

Cir. 2005). W e discern no error in the district court’s decision not to

recharacterize M cDaniel’s motion as a § 2255 petition which would have

inevitably failed. Accordingly, we A FFIR M the district court’s denial of the writ

of coram nobis, and its decision not to recharacterize M cDaniel’s petition as a

motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a

person in federal custody.


                                                ENTERED FOR THE COURT


                                                Carlos F. Lucero
                                                Circuit Judge

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