Wardell Moore v. Rick Thaler, Director ( 2013 )


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  •      Case: 12-20495       Document: 00512157362         Page: 1     Date Filed: 02/27/2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    February 27, 2013
    No. 12-20495
    Summary Calendar                        Lyle W. Cayce
    Clerk
    WARDELL MOORE,
    Petitioner-Appellant
    v.
    RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
    CORRECTIONAL INSTITUTIONS DIVISION,
    Respondent-Appellee
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:08-CV-2309
    Before JONES, DENNIS, and HAYNES, Circuit Judges.
    PER CURIAM:*
    Wardell Moore, Texas prisoner # 1391932, was convicted of aggravated
    assault with a deadly weapon and was sentenced to serve 75 years in prison.
    Now, he moves this court for authorization to proceed in forma pauperis (IFP)
    in his appeal from the district court’s denial of his motion for sanctions under
    Federal Rule of Civil Procedure 11(c)(2). Moore’s IFP motion constitutes a
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20495     Document: 00512157362       Page: 2   Date Filed: 02/27/2013
    No. 12-20495
    challenge to the district court’s certification that his appeal was not taken in
    good faith. Baugh v. Taylor, 
    117 F.3d 197
    , 202 (5th Cir. 1997).
    The district court’s denial of a Rule 11 motion is reviewed under the abuse
    of discretion standard, which is met only when no sensible person would agree
    with the district court’s decision. Friends for Am. Free Enterprise Ass’n v.
    Wal-Mart Stores, Inc, 
    284 F.3d 575
    , 577-78 (5th Cir. 2002). Moore has not met
    this standard.
    Consistent with his position in the district court and in several prior suits,
    Moore maintains that, in a motion for summary judgment filed with respect to
    Moore’s 
    28 U.S.C. § 2254
     habeas corpus petition, the Respondent falsely asserted
    that Moore was represented by counsel in his criminal proceedings. Moore
    asserts that he complied with the safe harbor provision of Rule 11(c)(2) by
    sending the respondent a letter giving notice of his intent to seek sanctions.
    Moore’s actions do not suffice to satisfy the notice requirement of Rule 11(c)(2).
    See In re Pratt, 
    524 F.3d 580
    , 585-88 (5th Cir. 2008); Eliott v. Tilton, 
    64 F.3d 213
    ,
    216 (5th Cir. 1995). Consequently, the district court did not abuse its discretion
    by concluding that Moore had not complied with the notice requirement of Rule
    11(c)(2) and denying his Rule 11(c)(2) motion.
    Because Moore has not shown that he will raise a nonfrivolous appellate
    claim, his motion for leave to proceed IFP is DENIED. See Howard v. King, 
    707 F.2d 215
    , 219-20 (5th Cir. 1983). The instant appeal is without arguable merit
    and is DISMISSED as frivolous. See Baugh, 
    117 F.3d at
    202 n.24; Howard, 
    707 F.2d at 219-20
    ; 5TH CIR. R. 42.2.
    This court previously noted that “Moore has filed numerous meritless
    pleadings insisting that he was denied counsel,” and he was informed “that
    filings additional pleadings raising similar claims may result in the imposition
    of sanctions.” Moore v. Thaler, No. 11-20640 at 2 (5th Cir. April 18, 2012). He
    failed to heed this warning. Consequently, Moore is ORDERED to pay a $100
    sanction to the Clerk of this Court. He is BARRED from filing any pleading in
    2
    Case: 12-20495     Document: 00512157362      Page: 3    Date Filed: 02/27/2013
    No. 12-20495
    this court or any court subject to this court’s jurisdiction challenging his
    convictions and sentence until the sanction is paid in full, unless he first obtains
    leave of the court in which he seeks to file the pleading. Finally, Moore is
    CAUTIONED that lodging future frivolous, repetitive, or otherwise abusive
    filings in the district court or in this court will subject him to additional and
    progressively more severe sanctions.
    3