United States v. Willis , 176 F. App'x 453 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 11, 2006
Charles R. Fulbruge III
Clerk
No. 05-50691
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL SCOTT WILLIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:00-CR-128-ALL
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Michael Scott Willis, pro se federal prisoner # 04279-180,
appeals the district court’s denial of his “Motion Renewing
Objections to Pre-Sentence Report.” The district court concluded
that it lacked jurisdiction to entertain the motion.
Willis’s appellate brief addresses the merits of his
underlying claim but does not address the district court’s ruling
that it lacked jurisdiction. Willis points to no legal authority
for the district court to entertain his motion. Thus, Willis has
*
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this opinion should not be published and is not precedent except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. 05-50691
-2-
abandoned any argument that the district court’s dismissal of his
motion for lack of jurisdiction was erroneous. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Even if we were to construe Willis’s motion liberally as
seeking relief pursuant to 28 U.S.C. § 2255, such a motion would
be successive. Willis’s claims do not meet the criteria for
filing a successive § 2255 motion because (a) they do not rely on
newly-discovered facts that would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder would
have found the movant guilty, and (b) they do not rely on a new
rule of constitutional law made retroactive by the Supreme Court
on collateral review. See §§ 2244(b)(3), 2255; see also In re
Elwood, 408 F.3d 211, 213 (5th Cir. 2005) (holding that United
States v. Booker, 543 U.S. 220 (2005), provides no basis for a
successive § 2255 motion).
Willis has failed to show that his appeal involves “legal
points arguable on their merits (and therefore not frivolous).”
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Therefore, we DISMISS the appeal as frivolous.