D.C. No. 4:96-CR-00168-GKF-1, N.D. Okla.
Before GORSUCH, O'BRIEN, and HOLMES, Circuit Judges.
ORDER AND JUDGMENT [*]
JEROME A. HOLMES, CIRCUIT JUDGE
William D. Carpenter, a former federal prisoner appearing pro se, appeals from the district court's August 15, 2014, order that: (1) denied his motions to terminate or modify the schedule for payments toward his 1997 sentence of restitution; (2) dismissed with prejudice his motion for coram nobis, construed as a motion attacking the validity of his 1997 sentence under 28 U.S.C. § 2255; and (3) denied him a certificate of appealability (COA) under 28 U.S.C. § 2253(c) with respect to the § 2255 motion, as reclassified. He also seeks leave to proceed on appeal in forma pauperis (IFP). The government has filed a response.
We have construed Mr. Carpenter's briefs liberally because he is pro se, see Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991), and "have tried to discern the kernel of the issues he wishes to present on appeal, " de Silva v. Pitts, 481 F.3d 1279, 1283 n.4 (10th Cir. 2007). He seeks a determination that certain statutory changes made by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) do not apply to his 1997 conviction because he committed the last acts upon which this conviction was based in 1993, well before AEDPA's enactment on April 24, 1996. He challenges: (1) the requirement of a COA to appeal the denial of a § 2255 motion; (2) the requirement that he make restitution payments for twenty years after his release from prison under 18 U.S.C. § 3613(b) and (f), instead of only five years under the former 18 U.S.C. § 3663(f)(2)(B) (1995); and (3) the application of AEDPA's one-year statute of limitations, 28 U.S.C. § 2555(f). He argues that applying AEDPA to his 1997 conviction is an ex post facto violation and works an unconstitutional suspension of the writ of habeas corpus. He also argues that the Internal Revenue Service (IRS), which he admits he defrauded, is a private corporation based in Puerto Rico rather than an agency of the federal government, so he did not defraud the United States.
As explained below, we conclude that Mr. Carpenter's arguments are frivolous. The law in this circuit has long been settled that the challenged changes made by AEDPA apply to a conviction entered after the date of AEDPA's enactment, such as Mr. Carpenter's 1997 conviction. And although we conclude that the COA requirement does not apply to Mr. Carpenter's appeal from the district court's denial of his motion for coram nobis, it is for a different reason than the baseless reason he asserts. Accordingly, we dismiss the appeal as frivolous and deny his motion for IFP. See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).
In the underlying case, Mr. Carpenter pled guilty in January 1997 in the Northern District of Oklahoma to conspiracy to defraud the United States. No. 96-cr-168, Doc. 13, at 1 (N.D. Okla.). Judgment was entered on May 21, 1997. Id. The district court sentenced him to thirty months' imprisonment and three years of supervised release. Finding that the loss to the IRS was more than $15, 000 for purposes of restitution, the court also ordered Mr. Carpenter to pay $5, 400 in restitution to the IRS. Id. at 4-5. Mr. Carpenter apparently completed his term of imprisonment and supervised release some years ago.
In 2002, Mr. Carpenter pled guilty in the Eastern District of Oklahoma to making a false claim against the United States. That district court sentenced Mr. Carpenter to thirty months' imprisonment and three years of supervised release, which he has completed. He was also ordered to pay $8320.48 in restitution and to pay $10 per month toward that obligation.
Over the years, Mr. Carpenter has filed a number of motions, styled various ways, to challenge his restitution obligations under his 1997 and 2002 federal convictions. This included two March 2014 motions which, together, asserted a claim for habeas relief in his 1997 case in the Northern District. R. at 9, 76 (Docs. 50, 52). The district court denied the habeas claim presented in these two motions as untimely and denied Mr. Carpenter a COA. See R. at 79-80 (Doc. 54). Mr. Carpenter did not appeal this order.
In another March 2014 motion filed in this 1997 case, Mr. Carpenter requested modification of his restitution payments so that his combined monthly payment for both of his federal cases would be $10. Id. at 13, 77 (Doc. 51, referring to this request in Doc. 50). The district court entered an order (Doc. 55) directing the government to respond to this motion. After the government filed its response, id. at 81 (Doc. 56), Mr. Carpenter filed another motion to modify his restitution payments, arguing that his liability to pay restitution should have ended after ten years. See id. at 97 (Doc. 58). He also filed a petition for writ of coram nobis, arguing that his liability to pay restitution should have ended in 2013, that he was not liable to pay restitution for twenty years under a change made to the law after the date of the last offense he had committed, and that 18 U.S.C. § 3231 was not lawfully enacted, so he should not have been indicted. Id. at 99-100, 103, 105-06 (Doc. 60). The district court considered Mr. Carpenter's three motions (Docs. 51, 58, and 60) in one order, id. at 112 (Doc. 61), and this is the order identified, by date of entry, in Mr. Carpenter's notice of appeal, id. at 118 (Doc. 63).
The district court held that it lacked subject matter jurisdiction to modify Mr. Carpenter's $10 monthly obligation in the 2002 Eastern District case. The court noted that he had paid $528 toward his restitution obligation in the underlying 1997 Northern District case, but denied his motions to terminate or modify his restitution payments because he "ha[d] not demonstrated a substantial change in his financial condition since sentencing, " as required for a modification under the Mandatory Victims Restitution Act of 1996 (MVRA), 18 U.S.C. § 3664(k). R. at 116. The court also explained that he was liable to pay restitution for twenty years after his release under the MVRA, 18 U.S.C. § 3613(b) and (f). R. at 114 & n.4. The court construed Mr. Carpenter's motion for coram nobis as a § 2255 application alleging the unlawful enactment of 18 U.S.C. § 3231, the statute granting district courts jurisdiction over all offenses against the laws of the United States. The court dismissed Mr. Carpenter's § 2255 motion with prejudice as untimely under AEDPA's one-year statute of limitations, 28 U.S.C. § 2255(f), and denied him a COA.
We review the district court's denial of a motion to modify restitution for abuse of discretion. See United States v. Vanhorn, 399 F.3d 884, 886 (8th Cir. 2005) (per curiam). We review the district court's application of law de novo. United States v. Martinez, 610 F.3d 1216, 1230 (10th Cir. 2010). The district court denied relief based on Mr. Carpenter's inability to meet the standards set by the MVRA in 18 U.S.C. §§ 3664(k) and 3613(b) and (f). Mr. Carpenter does not dispute the district court's conclusion that his financial circumstances have not substantially changed. He argues, rather, that the 1996 changes to the restitution scheme should ...