United States v. Ramos ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 18, 2009
No. 08-20100
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JULIO A RAMOS
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:99-CR-457-4
Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Julio A. Ramos, federal prisoner # 60283-004, has moved to proceed in
forma pauperis (IFP) in his appeal of the district court’s denial of his “Motion to
Inspect Jury Lists.” A movant for leave to proceed IFP on appeal must show
that he is a pauper and that the appeal is taken in good faith. Carson v. Polley,
689 F.2d 562, 586 (5th Cir. 1982).
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-20100
Ramos was convicted by a jury in November 2001 of conspiracy to possess
cocaine and marijuana with intent to distribute and possession of cocaine with
intent to distribute. His conviction was affirmed on direct appeal, and Ramos’s
initial 28 U.S.C. § 2255 motion was denied.
Ramos contends that he has an “unqualified right” to inspect the jury lists
pursuant to 28 U.S.C. § 1867(f) and that the district court abused its discretion
by denying his motion. Ramos asserts that he has received “an anonymous
letter from an alleged jury venireman” who claimed that he gave false
statements to the district court regarding residency requirements. He contends
that his conviction is invalid and that he is entitled to inspect the jury lists to
perfect a claim regarding unqualified jurors. He argues that his challenge to the
composition of the jury is not untimely and that the prior denial of his § 2255
motion does not preclude him from raising a challenge to the composition of the
jury.
Ramos’s instant motion to inspect the jury lists, filed more than six years
after the conclusion of his jury trial, and after the conclusion of his direct appeal,
is not timely under § 1867(a). See United States v. Hawkins, 566 F.2d 1006,
1013 (5th Cir. 1979). To the extent that Ramos seeks access to the jury lists for
the purpose of raising a constitutional claim regarding the jury selection process,
such a claim would not satisfy the standards of § 2255(h), which requires that
a claim raised in a successive § 2255 motion be based on newly discovered
evidence which “would be sufficient to establish by clear and convincing evidence
that no reasonable factfinder would have found the movant guilty of the offense,”
or on “a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.” As Ramos has
no cognizable claim based on irregularities in the jury selection process, the
district court did not err in denying his motion to inspect jury lists. See United
States v. Edwards, 442 F.3d 258, 268 n.10 (5th Cir. 2006).
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No. 08-20100
Ramos has not shown that his appeal presents a nonfrivolous issue.
Accordingly, his IFP motion is DENIED, and his appeal is DISMISSED. See
Carson, 689 F.2d at 586; 5 TH C IR. R. 42.2.
3