Gordon Straker v. Eric Holder, Jr. ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 28, 2009
No. 09-30323
Summary Calendar Charles R. Fulbruge III
Clerk
GORDON STRAKER,
Petitioner-Appellant
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:08-CV-995
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Gordon Straker, federal detainee # 25779-265, requests permission to
proceed in forma pauperis (IFP) in his appeal from the district court’s denial of
his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, wherein he
challenged his continued detention beyond the presumptively reasonable six-
month period following a final order of removal.
A movant seeking leave to proceed IFP on appeal must show that he is a
pauper and that the appeal is taken in good faith, i.e., that the appeal presents
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30323
nonfrivolous issues. Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).
Frivolous is defined as “lack[ing] an arguable basis in law or fact.” Taylor v.
Johnson, 257 F.3d 470, 472 (5th Cir. 2001). If the appeal is frivolous, this court
may dismiss it sua sponte. Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir.
1997); 5 TH C IR. R. 42.2.
Based on the current appellate record, Straker did not show that there was
no significant likelihood that he would be removed in the reasonably foreseeable
future. See Zadvydas v. Davis, 533 U.S. 678, 701 (2001). The record contained
evidence that the Government repeatedly sought to obtain travel documents
from the consulate of St. Vincent and the Grenadines. The Government was
unable to remove Straker because he had a petition for review pending in this
court, and he was experiencing a medical condition that demanded general
surgery. Straker failed to establish either that this court would not imminently
dispose of his petition for review, or that he was experiencing a medical
condition that disqualified him from being issued travel documents upon the
completion of his surgery.
We note that Straker, who presently remains in custody, has presented
alleged new evidence purporting to show that he continues after his surgery to
suffer from a medical condition that may preclude the issuance of travel
documents in the reasonably foreseeable future. However, this court does not
receive new evidence. See United States v. Flores, 887 F.2d 543, 546 (5th Cir.
1989). Straker remains free to file a new § 2241 petition should he believe, in
light of changed circumstances or new evidence, that his removal is not likely in
the reasonably foreseeable future.
Accordingly, Straker’s motion to proceed IFP on appeal is DENIED and his
appeal is DISMISSED as frivolous. See 5 TH C IR. R. 42.2.
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