United States v. John Milton, III , 445 F. App'x 770 ( 2011 )

Case: 11-30229 Document: 00511637263 Page: 1 Date Filed: 10/19/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 19, 2011
No. 11-30229
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN E. MILTON, III, Also Known as Boo Milton,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
No. 3:96-CR-17-1
No. 3:09-CV-987
Before DAVIS, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
John E. Milton, III, federal prisoner # 24395-034, was convicted of con-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-30229 Document: 00511637263 Page: 2 Date Filed: 10/19/2011
No. 11-30229
spiring to possess crack and powder cocaine with intent to distribute. He chal-
lenges the denial of a motion that he labeled as arising under Federal Rule of
Criminal Procedure 36. His request for a certificate of appealability is DENIED
as unnecessary, because he is not challenging “the final order in a proceeding
under” 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B).
In his filing with this court, Milton contends that relief under Rule 36 is
proper because his arguments concerning the district court’s alleged failure to
comply with certain portions of Federal Rule of Criminal Procedure 32 relate to
ministerial matters. We disagree and discern no error in the district court’s
holding that Milton’s motion, which raised a claim that did not pertain to a cleri-
cal matter and that could have been presented earlier, was an unauthorized suc-
cessive § 2255 motion. See United States v. Orozco-Ramirez, 211 F.3d 862, 867
(5th Cir. 2000); United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000); 28 U.S.C.
§ 2255(h).
The judgment is AFFIRMED, and Milton’s motion to proceed in forma
pauperis is DENIED.
2