Ortiz v. Lumpkin

Case: 20-40508 Document: 00516184387 Page: 1 Date Filed: 01/28/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 28, 2022
No. 20-40508
consolidated with Lyle W. Cayce
No. 20-40702 Clerk
Marcos Ortiz,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 3:04-CV-354
Before Elrod, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Marcos Lopez Ortiz, Texas prisoner # 1049113, has two consolidated
appeals pending before us, No. 20-40508 and No. 20-40702. In the first
appeal, the district court denied two nunc pro tunc motions that sought to have
*
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opinion should not be published and is not precedent except under the limited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: 20-40508 Document: 00516184387 Page: 2 Date Filed: 01/28/2022
No. 20-40508
c/w No. 20-40702
a new judge rule on Ortiz’s 28 U.S.C. § 2254 habeas application on the
ground that they were legally unsupported, denied Ortiz leave to proceed in
forma pauperis (IFP), and certified that an appeal would not be taken in good
faith. In the second appeal, the district court imposed sanctions, denied Ortiz
leave to proceed IFP, and certified that an appeal would not be taken in good
faith. Ortiz moves this court for leave to proceed IFP in both appeals.
By seeking leave to proceed IFP, Ortiz is challenging the district
court’s certifications that his appeals are not taken in good faith. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). To obtain leave, Ortiz must show
that he is financially eligible and that he will present a nonfrivolous issue for
appeal. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). If an appeal
is frivolous, this court may dismiss it sua sponte. 5th Cir. R. 42.2.
In appeal No. 20-40508, Ortiz seeks a certificate of appealability
(COA) to challenge the district court’s denial of the two nunc pro tunc
motions. Because the motions were not authorized by rule or statute and
could not provide the relief sought therein, we DENY a COA as unnecessary
to appeal them. 28 U.S.C. § 2253(c)(1); see Romero-Rodriguez v. Gonzales,
488 F.3d 672, 677–79 (5th Cir. 2007); United States v. Early, 27 F.3d 140,
141–42 (5th Cir. 1994). Rather than remand, we DISMISS Ortiz’s appeal
from the denial of the motions as frivolous. See Early, 27 F.3d at 141-42. In
light of Ortiz’s failure to identify a nonfrivolous issue to raise in this appeal,
his motion for leave to proceed IFP in this appeal also is DENIED. See
Baugh, 117 F.3d at 202 & n.24; Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983); 5th Cir. R. 42.2.
In appeal No. 20-40702, Ortiz fails to address the district court’s
imposition of sanctions. Accordingly, he has waived review of that issue and
fails to present a nonfrivolous issue for this court’s review. See Hughes v.
Johnson, 191 F.3d 607, 613 (5th Cir. 1999); Baugh, 117 F.3d at 202; Howard,
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Case: 20-40508 Document: 00516184387 Page: 3 Date Filed: 01/28/2022
No. 20-40508
c/w No. 20-40702
707 F.2d at 220. Accordingly, we DENY Ortiz leave to proceed IFP in this
appeal and DISMISS the appeal as frivolous. See Baugh, 117 F.3d at 202 &
n.24; 5th Cir. R. 42.2.
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