Hernandez v. Moore

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 18, 2009
No. 08-50783
Summary Calendar Charles R. Fulbruge III
Clerk
RAMON HERNANDEZ
Petitioner-Appellant
v.
WARDEN KEVIN MOORE; BUREAU OF IMMIGRATION AND CUSTOMS
ENFORCEMENT FIELD OFFICE DIRECTOR FOR DETENTION AND
REMOVAL
Respondents-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:07-CV-65
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges
PER CURIAM:*
Ramon Hernandez is currently housed in the Reeves County Detention
Center in Pecos, Texas. Hernandez filed a petition under 28 U.S.C. § 2241
seeking to be deported to Peru before completing his sentence. He now moves
to proceed in forma pauperis (IFP) to appeal the district court’s order dismissing
his petition for failure to state a claim on which relief could be granted. The
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-50783
district court denied Hernandez leave to proceed IFP on appeal, certifying that
the appeal was not taken in good faith for the reasons stated in its order denying
relief. By moving for leave to proceed IFP, Hernandez is challenging the district
court’s certification that his appeal was not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
This court reviews the grant of a motion to dismiss pursuant to Rule
12(b)(6) de novo. See Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir.
2009). In reviewing a Rule 12(b)(6) motion, the “court accepts all well-pleaded
facts as true, viewing them in the light most favorable to the plaintiff.” In re
Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007), cert.
denied, 128 S. Ct. 1230, and cert. denied, 128 S. Ct. 1231 (2008). “To survive a
Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state
a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Hernandez’s bald assertion that the record
shows that the Attorney General ordered the relief he requested is unsupported
by any evidence. This assertion is not a well-pleaded fact, but it is at best gross
speculation based on the letters in evidence and at worst an intentional
misrepresentation of that evidence. The district court did not err in finding that
Hernandez’s petition had not presented a claim for habeas relief that was
plausible even when viewed in the light most favorable to Hernandez.
Hernandez’s appeal is without arguable merit. See Howard v. King, 707 F.2d
215, 219-220 (5th Cir. 1983).
Hernandez has not shown that the district court’s determination that his
appeal would be frivolous was incorrect. Accordingly, his request for IFP is
DENIED. See Baugh, 117 F.3d at 202 n.24. Because his appeal is frivolous, it
is DISMISSED. 5 TH C IR. R. 42.2.
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