Risby v. Wendt ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 15, 2004
Charles R. Fulbruge III
Clerk
No. 04-10533
Summary Calendar
WILLIAM MORRIS RISBY,
Petitioner-Appellant,
versus
K. J. WENDT,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CV-0291-R
--------------------
Before JONES, BARSKDALE, and PRADO, Circuit Judges.
PER CURIAM:*
William Morris Risby, federal prisoner # 31495-077, has
filed an application for leave to proceed in forma pauperis (IFP)
on appeal, following the dismissal for lack of jurisdiction of
his 28 U.S.C. § 2241 petition challenging the validity of his
convictions for conspiring to commit mail fraud and mail fraud.
A movant for IFP on appeal must show that he is a pauper and that
he will present a nonfrivolous appellate issue. Jackson v.
Dallas Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986).
*
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this opinion should not be published and is not precedent except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. 04-10533
-2-
The documentation of Risby’s prison account indicates that
he cannot pay the filing fee without facing undue hardship. See
Adkins v. E. I. duPont de Nemours & Co., 335 U.S. 331, 339
(1948). However, Risby cannot establish that he would raise a
nonfrivolous appellate issue. No error existed in the time it
took the district court to consider his 28 U.S.C. § 2241
petition. See 28 U.S.C. § 2243. Risby has not shown that the
denial of relief constituted retaliation. See Woods v. Smith, 60
F.3d 1161, 1166 (5th Cir. 1995). There is no evidence to show
that the district court did not conduct a de novo review. See
Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993).
Risby contends that the district court erred in construing
his 28 U.S.C. § 2241 petition as a § 28 U.S.C. § 2255 motion.
Because Risby is challenging proceedings giving rise to his
conviction and sentence, the court properly construed his motion
as arising under 28 U.S.C. § 2255. See United States v. Tubwell,
37 F.3d 175, 177 (5th Cir. 1994). As Risby has not established
that 28 U.S.C. § 2255 is “inadequate or ineffective to test the
legality of his detention,” he may not proceed under 28 U.S.C.
§ 2241. 28 U.S.C. § 2255 ¶ 5; see also 28 U.S.C. § 2255 ¶ 1;
Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000). Because
Risby’s direct appeal was pending, the district court correctly
concluded that it should not address the 28 U.S.C. § 2255 motion
at this time. See Fassler v. United States, 858 F.2d 1016, 1019
(5th Cir. 1988).
No. 04-10533
-3-
Risby has not established that he will raise a nonfrivolous
appellate issue. Jackson, 811 F.2d at 261. Accordingly, we DENY
the motion to proceed IFP on appeal and we DISMISS Risby’s appeal
as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 n. 24 (5th
Cir. 1997); 5TH CIR. R. 42.2. We MODIFY the district court’s
dismissal from a “dismissal for lack of jurisdiction” to a
“dismissal without prejudice.” See United States v. Ortega, 859
F.2d 327, 334 (5th Cir. 1988). Risby’s “Motion to Take Judicial
Notice” of purportedly relevant case law is DENIED.
JUDGMENT MODIFIED; APPEAL DISMISSED; MOTION TO TAKE JUDICIAL
NOTICE DENIED.