United States v. Tolbert ( 2022 )

Case: 22-10376 Document: 00516556297 Page: 1 Date Filed: 11/23/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 23, 2022
No. 22-10376 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Ricky Wayne Tolbert, Jr.,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-278-1
Before King, Jones, and Smith, Circuit Judges.
Per Curiam:*
Ricky Wayne Tolbert, Jr., federal prisoner # 32656-177, pleaded guilty
to ten counts of bank robbery and one firearm count. He was sentenced to a
total of 204 months of imprisonment, three years of supervised release, and
restitution. After denying Tolbert’s successive motion to clarify or modify
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 22-10376 Document: 00516556297 Page: 2 Date Filed: 11/23/2022
No. 22-10376
his judgment of conviction, the district court denied Tolbert’s motion for
leave to proceed in forma pauperis (IFP) on appeal.
By moving to proceed IFP in this court, Tolbert challenges the district
court’s certification that his appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry is “limited to whether
the 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 citation omitted).
In the district court, Tolbert requested credit against his federal
sentence for the time he spent in state custody or for the district court to
order his federal sentence to run concurrently with his earlier imposed state
sentence. The proper vehicle for Tolbert to obtain consideration of his
claims is a 28 U.S.C. § 2241 petition. See Leal v. Tombone, 341 F.3d 427, 427-
30 (5th Cir. 2003); United States v. Garcia-Gutierrez, 835 F.2d 585, 586 (5th
Cir. 1988). Because Tolbert’s motion was not filed in the district of his
incarceration, the district court could not have considered his motion under
§ 2241. See United States v. Brown, 753 F.2d 455, 456 (5th Cir. 1985); see also
Reyes-Requena v. United States, 243 F.3d 893, 895 n.3 (5th Cir. 2001). Tolbert
identifies no other appropriate procedure for the relief he sought, and he has
therefore failed to identify a nonfrivolous issue for appeal. See Howard,
707 F.2d at 220.
Tolbert’s motion for leave to proceed IFP is DENIED. His motion
for oral argument is also DENIED. The appeal is DISMISSED as
frivolous. See 5th Cir. R. 42.2.
2