United States v. Powell , 302 F. App'x 266 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 10, 2008
No. 07-51260
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
TONY EDWARD POWELL
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:95-CR-4-ALL
Before DAVIS, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Tony Edward Powell, federal prisoner # 61525-080, appeals the district
court’s denial of his postjudgment motion seeking reconsideration of the district
court’s denial of his motion entitled “Administrative Notice and Demand Federal
Rules of Evidence 201 and 301.” Powell has filed a motion for leave to proceed
in forma pauperis (IFP) on appeal, challenging the district court’s denial of IFP
*
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should not be published and is not precedent except under the limited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. 07-51260
status and certification that his appeal would not be taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED.
R. APP. P. 24(a)(3).
Powell argues that the district court erred in addressing his motion
because the district court was named as a respondent and that the district court
erred in characterizing his motion for default as a motion for reconsideration.
He contends that his initial 28 U.S.C. § 2255 motion was not timely filed due to
the fault of his counsel. Powell also asserts that there was no federal jurisdiction
in his federal criminal case and argues the merits of his underlying habeas
claims.
Powell’s motion for reconsideration seeking a default judgment based on
the respondents’ failure to comply with his “Administrative Notice and Demand”
was a “meaningless, unauthorized motion” that should have been dismissed for
lack of jurisdiction. See United States v. Early, 27 F.3d 140, 141-42 (5th Cir.
1994). Even if the motion could be construed as a § 2255 motion challenging his
conviction, it is successive and, thus, the district court lacked jurisdiction to
address the pleading. See United States v. Key, 205 F.3d 773, 774 (5th Cir.
2000); § 2255; 28 U.S.C. § 2244(b)(3). Powell’s appeal has no arguable merit and
is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Powell’s
motion to proceed IFP is denied, and the appeal is dismissed as frivolous. See
Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
The district court and this court have cautioned Powell that he would be
sanctioned if he continued to file frivolous challenges to his conviction or
sentence. See United States v. Powell, No. 04-50931, slip op. at 2 (5th Cir. Aug.
18, 2005). Nevertheless, Powell has continued to engage in abusive and frivolous
filing practices in his pursuit of postjudgment relief. Accordingly, we now order
Powell to pay $100 as a sanction to the clerk of this court. Powell is barred from
filing in this court or in any court subject to this court's jurisdiction any
challenge to his conviction or sentence until the total amount of the sanction
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No. 07-51260
imposed on him is paid in full. Moreover, the clerk of this court and the clerks
of the district courts are directed to refuse to file any challenge by Powell to his
conviction or sentence unless Powell submits proof of satisfaction of this
sanction. If Powell attempts to file any such notices of appeal or original
proceedings in this court without such proof, the clerk shall docket them for
administrative purposes only. Any such submissions which do not show proof
that the sanction has been paid will neither be addressed nor acknowledged.
Powell is also warned that filing any future frivolous or repetitive challenges to
his conviction or sentence in this court or any court subject to this court’s
jurisdiction will subject him to additional sanctions, as will the failure to
withdraw any such pending challenges that are frivolous.
MOTION TO PROCEED IFP DENIED; APPEAL DISMISSED;
SANCTION IMPOSED; SANCTION WARNING ISSUED.
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