United States v. Bounds , 224 F. App'x 363 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 3, 2007
Charles R. Fulbruge III
Clerk
No. 06-30864
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOE ALLEN BOUNDS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:88-CR-50038-2
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Joe Allen Bounds, federal prisoner 18363-
077, seeks our authorization to proceed in forma pauperis (IFP) in
his appeal from the district court’s denial of his FED. R. CIV. P.
60(b) motion as an unauthorized successive 28 U.S.C. § 2255 motion.
He argues that the district court erred in construing his as a
successive § 2255 motion because he only challenged a defect in the
integrity of his 1996 post-conviction proceedings. The district
court also determined that Bounds’s motion was untimely, and he
contests that finding as well. Bounds also challenges the district
*
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this opinion should not be published and is not precedent except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.
court’s denial of motions to unseal and produce documents
pertaining to a Rule 35 motion filed by the government in the case
of Bounds’s co-defendant, and he has filed a motion to include in
the appellate record documents pertaining to that Rule 35 motion.
Bounds further complains that the district court failed to conduct
an evidentiary hearing.
Bounds’s Rule 60(b) motion asserted the same claims raised in
a previous § 2255 motion. As such, the district court properly
construed his Rule 60(b) motion as a successive § 2255 motion. See
United States v. Rich, 141 F.3d 550, 553 (5th Cir. 1998); Gonzalez
v. Crosby, 545 U.S. 524, 532-33 (2005). The district court was
without jurisdiction to consider a successive § 2255 motion. See
28 U.S.C. §§ 2244(b)(3)(A), 2255; United States v. Key, 205 F.3d
773, 774 (5th Cir. 2000). Therefore, it is unnecessary to address
the district court’s finding that Bounds’s motion was untimely
filed or the court’s denial of his motions to produce documents and
conduct an evidentiary hearing.
As Bounds has not demonstrated a nonfrivolous issue for
appeal, he may not proceed IFP. See FED. R. APP. P. 24(a). His
appeal is without arguable merit and is dismissed as frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR.
R. 42.2; see also Baugh v. Taylor, 117 F.3d 197, 201-02 (5th Cir.
1997). His motion for the designation of the record on appeal is
denied as well. Bounds is warned that future frivolous filings in
this court or in the district court, or the future prosecution of
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frivolous actions or appeals, will invite the imposition of
sanctions, including monetary penalties and restrictions of his
ability to file actions and appeals.
ALL OUTSTANDING MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
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