United States v. Keys ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Nos. 98-60431 and
99-60066
USDC No. 3-94-CV-47
USDC No. 3:95-CV-38
USDC No. 3:93-CR-154-2-S
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBY EARL KEYS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
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August 12, 1999
Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Bobby Earl Keys, federal inmate #03344-043, appeals the
district court’s denial of his motions for a new trial filed
purportedly under Fed. R. Crim. P. 33, his motions for coram
nobis relief (No. 98-60431), and his motion to vacate, set aside,
or correct sentence filed pursuant to 28 U.S.C. § 2255 motion
(No. 99-60066). Keys contends that the Government did not prove
that the Medical Branch of the Bank of New Albany was insured by
*
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that this opinion should not be published and is not precedent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.
Nos. 98-60431 & 99-60066
- 2 -
the Federal Deposit Insurance Corporation at the time of the
robbery and that the district court’s instructions to the jury
that the parties stipulated that the bank was insured removed an
essential element of the crime from the jury’s determination. We
sua sponte consolidate the appeals pursuant to Fed. R. App.
P. 3(b).
In Keys’s October 1996 motion, filed purportedly under Fed.
R. Crim. P. 33, he asserted that his trial counsel provided
ineffective assistance by failing to object to the “mugshots”
which were introduced at trial. Keys does not assert ineffective
assistance claims in this court. Keys has not preserved any
issue for this court’s consideration. See Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987)
(this court will not raise and discuss legal issues that the
appellant has failed to assert).
Keys’s Rule 33 motion filed in June 1997 was untimely filed
under former Rule 33 and amended Rule 33. The district court did
not err in denying relief.
The district court did not err in denying Keys’s motions for
coram nobis relief. See United States v. Drobny, 955 F.2d 990,
996 (5th Cir. 1992) (a writ of error coram nobis is the
appropriate procedural vehicle for attacking a conviction when a
defendant is no longer in custody). Accordingly, Keys’s motion
for a certificate of appealability (COA) is DENIED as
unnecessary, and his appeal in No. 98-60431 is DISMISSED as
frivolous. See 5th Cir. R. 42.2.
Nos. 98-60431 & 99-60066
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Keys moves for leave to proceed in forma pauperis (IFP) in
Appeal No. 99-60066. A movant for IFP on appeal must show that
he is a pauper and that he will present a nonfrivolous issue on
appeal. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).
Keys does not provide argument on any of the issues raised
in his § 2255 motion in the district court. Because Keys
provides no argument on the only appealable issue, the propriety
of the district court’s dismissal of his § 2255 motion, he has
not established a nonfrivolous issue for appeal. His motion to
proceed IFP is DENIED. Keys’s appeal is frivolous. Because the
appeal is frivolous, the appeal in No. 99-60066 is DISMISSED.
See 5th Cir. R. 42.2. We caution Keys that any additional
frivolous appeals filed by him or on his behalf will invite the
imposition of sanctions. To avoid sanctions, Keys is further
cautioned to review any pending appeals to ensure that they do
not raise arguments that are frivolous.
Keys has filed a myriad of other motions in this court. The
motions are DENIED.
APPEAL NO. 98-60431 DISMISSED AS FRIVOLOUS; COA DENIED AS
UNNECESSARY; IFP DENIED; APPEAL NO. 99-60066 DISMISSED AS
FRIVOLOUS; SANCTION WARNING ISSUED; ALL OUTSTANDING MOTIONS
DENIED.