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Richard McIntosh, proceeding pro se, appealed a district court’s judgment denying his petition for a writ of coram nobis and the court’s orders denying his motion to void that judgment, his motion to recuse and his motion for appointment of counsel.
In 1991, McIntosh robbed the same Oklahoma bank twice. He was convicted first in federal district court and then in Oklahoma state court. The federal court sentenced him to 34 years in prison and the state court to life imprisonment plus 15 years. The 10th Circuit upheld his federal conviction and sentence on direct appeal and dismissed his appeal from the denial of his motion.
In 2016, McIntosh filed a motion purportedly under Federal Rule of Civil Procedure 60(b)(4), asserting the federal court that convicted him lacked subject matter jurisdiction due to the failure to properly procure his attendance at trial through the appropriate use of writs of habeas corpus ad prosequendum. He alleged Oklahoma authorities arrested him first, and although the federal district court issued a habeas corpus ad prosequendum for his attendance at his arraignment on federal charges, he was afterward returned to state custody and the federal court failed to properly use a habeas corpus ad prosequendum to procure his attendance at later proceedings, including trial. The district court concluded the motion was an unauthorized second or successive 2255 motion and transferred it to the appeals court for authorization. The 10th Circuit denied authorization.
A few weeks later, McIntosh asserted the same argument in a petition for a writ of coram nobis, adding that after his federal arraignment but before his federal trial, he attended a preliminary hearing in state court. The district court denied that petition. The 10th Circuit affirmed for three reasons. First, McIntosh was still in federal custody, and “[a] prisoner may not challenge a sentence or conviction for which he is currently in custody through a writ of coram nobis,” noted the opinion, citing the 10th Circuit Court of Appeals 2017 decision United States v. McIntosh. Second, relief under 2255 was available and adequate and McIntosh presented the same jurisdictional issue in his second 2255 motion. And third, “the facts underlying his jurisdictional claim occurred and were known to him over twenty-five years ago,” and McIntosh had “not shown diligence in bringing his claim. He could and should have raised his jurisdictional claim on direct appeal or in his initial § 2255 motion.”
In 2021, McIntosh filed a second petition for a writ of coram nobis, the denial of which was at issue in his appeal. He alleged he was no longer in the custody of the U.S. and he incorporated the substance of his first coram nobis petition. The district court construed the petition as seeking vacatur of his federal convictions based on McGirt v. Oklahoma, which McIntosh had referenced in a motion for appointment of counsel he had filed more than a year prior to filing his second coram nobis petition. The district court denied the petition because the Supreme Court had not held McGirt was retroactively applicable. The court also denied the motion for appointment of counsel and entered a separate judgment.
McIntosh filed a post-judgment motion seeking to recuse the district judge and to void the denial of the coram nobis petition. He argued his request for coram nobis relief wasn’t based on McGirt and, by so construing it, the district court displayed prejudice toward him. The district court declined to recuse because adverse rulings alone were an insufficient basis for recusal. The court denied the motion to void its denial of the writ because the 10th Circuit’s ruling affirming the denial of McIntosh’s first petition for coram nobis relief was the law of the case, although given McIntosh was no longer in federal custody, only the due-diligence rationale remained vital. The district court found McIntosh lacked standing to challenge the transfer of custody from Oklahoma to the federal court because it involved “an issue of comity between two sovereigns.” This appeal followed.
McIntosh argued because coram nobis is regarded as ancillary to a criminal proceeding, the district court erred in denying his motion for appointment of counsel. He relied on 18 U.S.C. 3006A(c), which provides: “A person for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance before the United States magistrate judge or the court through appeal, including ancillary matters appropriate to the proceedings.” According to McIntosh’s motion for appointment of counsel, he sought counsel only to advance jurisdictional arguments based on McGirt. But in his post-judgment motion, he argued McGirt was inapplicable and his petition didn’t rely on it. He maintains those positions on appeal, the opinion noted. The 10th Circuit saw no harm in failing to appoint counsel to assert an argument McIntosh disclaims making.
McIntosh next argued the district court erred in construing his petition as based on McGirt. The 10th Circuit saw no reversible error. To the extent the district court initially overlooked McIntosh’s express incorporation of the arguments he made in his first coram nobis petition, the district court remedied that when it ruled on the post-judgment motion.
McIntosh then argued the district judge should have recused because the judge denied his petition on procedural grounds rather than the merits of his jurisdictional argument and that might have affected the judge’s ability to apply federal law fairly. But “a motion to recuse cannot be based solely on adverse rulings,” noted the opinion, citing the 10th Circuit Court of Appeals decision Willner v. Univ. of Kan. McIntosh relied only on the district judge’s adverse ruling. The 10th Circuit saw no abuse of discretion in the denial of the motion to recuse.
McIntosh’s remaining arguments had no bearing on the 10th Circuit’s reasons for affirming the district court’s denial of his motion to void the judgment denying coram nobis relief, the opinion noted. And its resolution of that issue rendered it unnecessary to consider the district court’s alternative reason for declining to void that judgment.
A 10th Circuit panel out of Muskogee, Oklahoma, affirmed the district court’s judgment denying McIntosh’s petition for a writ of coram nobis and its order denying his post-judgment motion. The 10th Circuit granted McIntosh’s request to proceed on appeal without prepayment of costs or fees.