USA v. Karen Tucker

Filing

UNPUBLISHED OPINION FILED. [13-10616 Affirmed ] Judge: WED , Judge: LHS , Judge: SAH Mandate pull date is 04/14/2014 [13-10616]

Case: 13-10616

Document: 00512538643

Page: 1

Date Filed: 02/20/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 13-10616
Summary Calendar

FILED
February 20, 2014
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellant
v.
KAREN E. TUCKER,
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:12-CV-5229
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *

Karen E. Tucker pleaded guilty in 1998 to one count of Medicare fraud
on the basis that she submitted claims for podiatric services that she provided
without the required authorization of the attending physician, in violation of
Medicare policy. She did not timely appeal but later filed an unsuccessful 28
U.S.C. § 2255 motion asserting that her conduct did not violate Medicare policy
and that her counsel thus rendered ineffective assistance by advising her to

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

Case: 13-10616

Document: 00512538643

Page: 2

Date Filed: 02/20/2014

No. 13-10616
plead guilty. In 2012, she filed a second § 2255 motion, asserting the same
ineffective-assistance claim as well as claims of withholding of evidence,
entrapment, and various constitutional violations by the government. Her
claims were again premised on her assertion that she pleaded guilty to an
offense she did not commit. The district court transferred the matter to this
court as an unauthorized successive motion. As Tucker was no longer in
custody, § 2255 relief was not available, and we returned the matter to the
district court to consider her motion as seeking a writ of coram nobis. The
district court denied the writ, and Tucker now appeals.
“The writ of coram nobis is an extraordinary remedy available to a
petitioner no longer in custody who seeks to vacate a criminal conviction in
circumstances where the petitioner can demonstrate civil disabilities as a
consequence of the criminal conviction, and that the challenged error is of
sufficient magnitude to justify the extraordinary relief.” Jimenez v. Trominski,
91 F.3d 767, 768 (5th Cir. 1996). We review factual findings for clear error,
legal determinations de novo, and the ultimate decision to deny the writ for
abuse of discretion. Santos-Sanchez v. United States, 548 F.3d 327, 330 (5th
Cir. 2008), vacated on other grounds, 559 U.S. 1046, 1046 (2010).

The

“regurgitation” of claims already presented in an unsuccessful § 2255 petition
does not make “the necessary showing of a complete miscarriage of justice.”
See United States v. Esogbue, 357 F.3d 532, 535 (5th Cir. 2004) (internal
quotation marks omitted). We agree with the district court that Tucker has
failed to make the necessary showing for coram nobas relief. See id.
In addition to challenging her conviction, Tucker seeks monetary
damages for various alleged constitutional and statutory violations relating to
her conviction and withholding of Medicare payments. Neither a § 2255 motion
nor a writ of coram nobis is the proper vehicle for such claims.
AFFIRMED.
2