Kingsley Dayo v. Eric Holder, Jr. ( 2012 )

Case: 12-50428 Document: 00512057008 Page: 1 Date Filed: 11/19/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 19, 2012
No. 12-50428
Summary Calendar Lyle W. Cayce
Clerk
KINGSLEY DAYO,
Petitioner-Appellant
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL; JANET NAPOLITANO,
SECRETARY, DEPARTMENT OF HOMELAND SECURITY; MICHAEL J.
PITTS, Field Office Director for ICE - San Antonio, Texas District; G. GOMEZ,
Warden of the South Texas Detention Complex - Pearsall, Texas,
Respondents-Appellees
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:12-CV-81
Before JOLLY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Kingsley Dayo, a native and citizen of Nigeria, moves this court for
authorization to proceed in forma pauperis (IFP) in an appeal from the dismissal
of his 28 U.S.C. § 2241 petition. Dayo filed the petition to challenge his
continued detention, which he argued violated the statutes governing his
detention, as well as his substantive and procedural due process rights. The
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50428 Document: 00512057008 Page: 2 Date Filed: 11/19/2012
No. 12-50428
parties agreed to proceed before the magistrate judge. The magistrate judge
determined that, when Dayo filed the § 2241 petition, his initial removal
proceeding had been terminated in his favor and that he was in custody due to
the commencement of a second removal proceeding. The magistrate judge
therefore held that his claims related to the initial removal proceedings were
moot and that any claim for relief related to his current detention was
premature.
By moving to proceed IFP, Dayo is challenging the magistrate judge’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997). Dayo, however, does not challenge the magistrate
judge’s reasons for dismissing his § 2241 petition. His entire brief is devoted to
addressing purported due process violations concerning his first removal
proceeding, but he fails to address the magistrate judge’s conclusion that these
claims were moot. Accordingly, he has abandoned any challenge to the
magistrate judge’s determination that his § 2241 petition should be dismissed.
See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987).
Dayo has failed to show that his appeal involves “legal points arguable on
their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983) (internal quotation marks and citations omitted). His IFP motion
is therefore denied, and his appeal is dismissed. See Baugh, 117 F.3d at 202 &
n.24. His motion to expedite is denied as well.
MOTIONS DENIED; APPEAL DISMISSED.
2