Harris v. United States ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30223
Conference Calendar
BURLIN J. HARRIS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 01-CV-173-B-M2
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August 21, 2002
Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.
PER CURIAM:*
Burlin J. Harris, a federal prisoner (# 20735-095), seeks
leave to proceed in forma pauperis (“IFP”) in his appeal from the
district court’s order dismissing his postconviction motion,
purportedly filed pursuant to 28 U.S.C. § 2241, for lack of
jurisdiction.
To obtain leave to proceed IFP on appeal, Harris must
demonstrate both financial eligibility and that he will present a
nonfrivolous issue on appeal. See Carson v. Polley, 689 F.2d
*
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that this opinion should not be published and is not precedent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.
No. 02-30223
-2-
562, 586 (5th Cir. 1982). Harris has arguably demonstrated that
he is financially eligible to proceed IFP, but he has failed to
present a nonfrivolous issue for appeal. The district court
lacked jurisdiction to consider Harris’ postconviction motion
under 28 U.S.C. § 2241, because Harris is incarcerated in
Tennessee. See Lee v. Wetzel, 244 F.3d 370, 373-74 (5th Cir.
2001). Insofar as the motion should be construed as a 28 U.S.C.
§ 2255 motion to vacate, the motion is his third such motion, but
Harris has not sought authorization from this court to file a
successive 28 U.S.C. § 2255 motion. See 28 U.S.C. §§ 2255,
2244(b); United States v. Rich, 141 F.3d 550, 551 (5th Cir.
1998).
Because Harris has failed to show that he will raise a
nonfrivolous issue on appeal, his motion to proceed IFP on appeal
is DENIED. See Carson, 689 F.2d at 586. Because the appeal is
frivolous, it is DISMISSED. See 5TH CIR. R. 42.2.
IFP DENIED; APPEAL DISMISSED.