Filed: Oct. 04, 2013
Latest Update: Mar. 28, 2017
Summary: *, This order and judgment is not binding precedent except under the, doctrines of law of the case, res judicata and collateral estoppel., Peach was convicted of various crimes in 1995 and 1996.2005) (quoting Weese, 98 F.3d at 552–53).why this court should not impose appellate filing restrictions.
FILED
United States Court of Appeals
Tenth Circuit
October 4, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. Nos. 13-3104 and 13-3181
(D. of Kan.)
MICHAEL C. PEACH, (D.C. No. 6:95-CR-10052-MLB-1)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.
Michael Peach appeals the district court’s denial of relief for prosecutorial
fraud on the court in his 1995 criminal trial. Peach also appeals the district
court’s denial of his motion for grand jury transcripts, and he moves to proceed in
forma pauperis (IFP). The government, in turn, asks us to dismiss these appeals
as frivolous. We agree with the government and the district court that these cases
are frivolous. Accordingly, we DISMISS Peach’s appeals, and we DENY Peach’s
motion to proceed IFP.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Peach was convicted of various crimes in 1995 and 1996. We affirmed
Peach’s convictions and sentences, see United States v. Peach, 113 F.3d 1247
(table) (10th Cir. 1997) (unpublished), and we denied relief from Peach’s
collateral attack on his convictions, see United States v. Peach, 241 F. App’x 530
(10th Cir. 2007).
Since Peach’s direct appeal, he has filed a number of challenges to his
convictions. See, e.g., Peach v. Joslin, No. C-10-020, 2010 WL 4791451, at
*1–*2 (S.D. Tex. Sept. 10, 2010) (outlining the history of some of Peach’s prior
filings). Although he may file only one collateral attack (absent exceptional
circumstances not present here), see 28 U.S.C. § 2255(h), Peach attempts to avoid
this jurisdictional limit by invoking our inherent authority to rectify fraud on the
court, see Hazel-Atlas Glass Co. v. Hartford-Empire Co.,
322 U.S. 238 (1944);
see also Fed. R. Civ. P. 60(d)(3).
But Peach’s present allegations are simply another attack on the legality of
his convictions, a topic about which this court—and other courts—have already
spilt much ink. Peach has not requested permission for a second or successive
collateral attack, so the present application for relief is not permitted. See 28
U.S.C. § 2244(b)(3)(A). Even if we construe this appeal as a request for such
permission, the request would fail for lack of new evidence or a new
constitutional rule. See 28 U.S.C. § 2255(h).
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To the extent Peach is actually alleging fraud on the court, his allegations
lack any merit. “When alleging a claim of fraud on the court, the plaintiff must
show by clear and convincing evidence that there was fraud on the court, and all
doubts must be resolved in favor of the finality of the judgment.” Weese v.
Schukman, 98 F.3d 542, 552 (10th Cir. 1996). “[O]nly the most egregious
conduct, such as bribery of a judge or members of a jury, or the fabrication of
evidence by a party in which an attorney is implicated,” rises to the level of fraud
on the court. Zurich N. Am. v. Matrix Serv., Inc.,
426 F.3d 1281, 1291 (10th Cir.
2005) (quoting Weese, 98 F.3d at 552–53). Peach’s only evidence—from court
records—is inadequate to meet this burden. His request for still more transcripts
from court proceedings cannot help his claim either. And Peach has not
explained why he could not have raised this claim years earlier; all the relevant
events occurred in 1995 and are matters of public record.
Given the frivolous nature of these appeals and the numerous times Peach
has challenged his convictions, the government’s request that we require court
approval before the clerk accepts further filings is well taken. “When a pro se
litigant files complaints that are repetitive, duplicative of other filings, without
merit, or frivolous, he abuses the district court process.” Childs v. Miller, 713
F.3d 1262, 1265 (10th Cir. 2013). And “[n]o one, rich or poor, is entitled to
abuse the judicial process.” Id. (internal quotation marks omitted). Thus, we
“approve[] restrictions placed on litigants with a documented lengthy history of
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vexatious, abusive actions, so long as the court publishes guidelines about what
the plaintiff must do to obtain court permission to file an action, and the plaintiff
is given notice and an opportunity to respond to the restrictive order.” Werner v.
Utah, 32 F.3d 1446, 1448 (10th Cir. 1994).
Accordingly, we caution Peach that future frivolous appeals may result in a
summary disposition without discussion and an order requiring him to show cause
why this court should not impose appellate filing restrictions. But for now, we
deny the government’s motion that restrictions be imposed on future filings.
For these reasons, we DISMISS Peach’s appeals, and we DENY his motion
to proceed IFP.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
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