Ishmael Salahuddin v. William Stephens, Director ( 2013 )

Case: 13-40340 Document: 00512334006 Page: 1 Date Filed: 08/07/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 7, 2013
No. 13-40340
Summary Calendar Lyle W. Cayce
Clerk
ISHMAEL SALAHUDDIN, also known as Ismail Saladin,
Petitioner-Appellant
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:08-CV-138
Before JONES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Ishmael Salahuddin, Texas prisoner # 1297582, was convicted by a jury
of five counts of attempted capital murder, one count of possession of cocaine
with intent to deliver, and one count of escape. He was sentenced to life in
prison on each capital murder count and the escape count and to 99 years on the
cocaine count.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-40340 Document: 00512334006 Page: 2 Date Filed: 08/07/2013
No. 13-40340
In 2008, Salahuddin filed a 28 U.S.C. § 2254 petition, which was dismissed
by the district court; this court denied him a certificate of appealability (COA).
He filed three postjudgment motions pursuant to Rule 60 of the Federal Rules
of Civil Procedure, asserting that he was denied his right to counsel in
connection with a psychiatric evaluation and a competency proceeding, that he
was denied his right to represent himself, and that the State had committed
fraud on the court. The district court denied the motions as successive § 2254
petitions and rejected Salahuddin’s fraud claims. This court denied a COA as
to the first two motions. See Salahuddin v. Thaler, No. 11-40487 (August 1,
2011) (single-judge order); Salahuddin v. Thaler, No. 10-40914 (February 3,
2011) (single-judge order). A COA request remains pending in Case No. 12-
41124.
Salahuddin then filed the subject motion for sanctions pursuant to Rule
11 of the Federal Rules of Civil Procedure. In it, he reiterated his assertions
that he was denied his right to counsel and his right of self-representation and
argued that the State misrepresented to the court that (a) he had waived his
right of self-representation, and (b) the claim was not cognizable, was
procedurally defaulted, and was without merit. The district court denied the
sanctions motion, and Salahuddin appeals that ruling.
As a threshold matter, we deny a COA as unnecessary because the order
denying Rule 11 sanctions did not dispose of the merits of Salahuddin’s § 2254
petition. See Harbison v. Bell, 556 U.S. 180, 183 (2009).
We review the denial of Rule 11 sanctions for an abuse of discretion.
Friends for Am. Free Enterprise Ass’n v. Wal-Mart Stores, Inc., 284 F.3d 575,
577-78 (5th Cir. 2002). In addition to failing to comply with the notice procedure
of Rule 11(c)(2), Salahuddin has not raised any issue of merit. The record shows
that Salahuddin withdrew a prior request to represent himself and consented to
representation of counsel, Mark Woerner. Thus, the State’s assertion that he
had waived his right of self-representation was supported factually and legally.
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Case: 13-40340 Document: 00512334006 Page: 3 Date Filed: 08/07/2013
No. 13-40340
See Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982) (en banc). Further,
the State correctly asserted that federal habeas relief was not available to the
extent that Salahuddin cited the Texas Constitution, see Estelle v. McGuire,
502 U.S. 62, 68 (1991), and Salahuddin offers only conclusory arguments that his
claim was not defaulted. In short, the district court did not abuse its discretion
by concluding that the State had not violated Rule 11. See FED. R. CIV. P. 11(b).
Because Salahuddin has failed to raise an issue of arguable merit, we
dismiss his appeal as frivolous. See Lyons v. Sheetz, 834 F.2d 493, 496 (5th Cir.
1987); 5TH CIR. R. 42.2. Salahuddin was previously cautioned that frivolous,
repetitive, or otherwise abusive filings could result in sanctions and restrictions
on his ability to file pleadings. Salahuddin did not heed that warning.
Accordingly, he is ordered to pay a sanction in the amount of $100 to the clerk
of this court. Further, he is barred from filing in this court or in any court
subject to this court’s jurisdiction any challenge to the above-mentioned
convictions or sentences until the sanction is paid in full, unless he first obtains
leave of the court in which he seeks to file such challenge. Salahuddin is
cautioned again that any future frivolous, repetitive, or otherwise abusive filings
in this court or in any court subject to this court’s jurisdiction will subject him
to additional and progressively more severe sanctions.
COA DENIED AS UNNECESSARY; APPEAL DISMISSED AS
FRIVOLOUS; SANCTION IMPOSED; SANCTION WARNING ISSUED.
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