Robert Back v. Amarillo Police Department

Case: 15-11054 Document: 00513849691 Page: 1 Date Filed: 01/25/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-11054 FILED
Summary Calendar
January 25, 2017
Lyle W. Cayce
Clerk
ROBERT JAMES BACK, also known as Robert Back,
Plaintiff-Appellant
v.
AMARILLO POLICE DEPARTMENT, AMARILLO, TEXAS; POTTER
COUNTY DISTRICT ATTORNEY’S OFFICE, POTTER COUNTY, TEXAS;
THE 320TH JUDICIAL DISTRICT COURT FOR POTTER COUNTY, TEXAS,
Defendants-Appellees
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 2:15-CV-269
Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
Robert James Back, Texas prisoner # 1465630, moves for leave to
proceed in forma pauperis (IFP) on appeal from the district court’s order
denying him relief on his petition for a writ of error coram nobis. Back wishes
to challenge his 2007 state robbery conviction. In denying the motion, the
district court noted that Back was attempting to circumvent the limitations on
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-11054 Document: 00513849691 Page: 2 Date Filed: 01/25/2017
No. 15-11054
filing a successive 28 U.S.C. § 2254 application and that coram nobis relief was
not an available remedy. The district court also certified, pursuant to 28 U.S.C.
§ 1915(a)(3) and Federal Rule of Appellate Procedure 24(a)(3), that Back’s
appeal was not taken in good faith.
By moving to proceed IFP in this court, Back is challenging 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 into a litigant’s good
faith “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).
As the district court noted, a writ of coram nobis “can only issue to aid
the jurisdiction of the court in which the conviction was had.” Sinclair v.
Louisiana, 679 F.2d 513, 514 (5th Cir. 1982). Moreover, “[i]t is well settled
that the writ of error coram nobis is not available in federal court to attack
state criminal judgments.” Id.
Back does not dispute that he remains in state custody pursuant to his
2007 conviction or that he requested relief from his 2007 state conviction but
instead argues that coram nobis relief is proper under the “all writs statute”
and the miscarriage of justice doctrine. His arguments are unavailing. The
district court did not have authority to grant coram nobis relief to a state
prisoner seeking to attack a state court judgment. See id. Back has failed to
demonstrate that the instant appeals “involve[] legal points arguable on their
merits.” Howard, 707 F.2d at 220.
Accordingly, his motion for leave to proceed IFP on appeal is DENIED,
and the appeals are DISMISSED as frivolous. See Baugh, 117 F.3d at 202
n.24; 5TH CIR. R. 42.2.
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