United States v. Cullen Harris

Case: 09-50932 Document: 00511172970 Page: 1 Date Filed: 07/14/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 14, 2010
No. 09-50932
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CULLEN REED HARRIS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:91-43-2
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Cullen Reed Harris, federal prisoner # 01864-063, was convicted of
conspiracy to manufacture more than 1,000 grams of methamphetamine and
manufacturing more than 1,000 grams of methamphetamine. He was sentenced
to life imprisonment and ten years of supervised release on each count, the
sentences to be served concurrently, and fined $25,000 on each count, for a total
fine of $50,000. Harris seeks leave to proceed in forma pauperis (IFP) on appeal
from the district court’s denial of his “Motion to Recover Stolen Moneys” in which
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50932 Document: 00511172970 Page: 2 Date Filed: 07/14/2010
No. 09-50932
he sought the return of an alleged overpayment on his fine and the vacatur of
one of his convictions on the ground that the indictment was duplicitous.
By seeking leave to proceed IFP, Harris is challenging the district court’s
certification that his appeal is not taken in good faith because it is frivolous. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3);
F ED. R. A PP. P. 24(a)(5).
Harris argues that the indictment was duplicitous because both of his
convictions were for the same conduct, making one of his $25,000 fines and one
of his $50 special assessments improper. This claim is a challenge to his
convictions and sentences, and it could only have been properly raised under
§ 2255. See Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000). The district
court, however, did not have jurisdiction to construe Harris’s motion as a § 2255
motion because Harris had previously filed a § 2255 motion and had not received
permission from this court to file a successive § 2255 motion. See Hooker v.
Sivley, 187 F.3d 680, 681-82 (5th Cir. 1999).
Harris argues that the Government collected $275 more than he owed on
his fines. This claim is a challenge to the manner and execution of the collection
of his fines, not a challenge to any action taken by the district court. A claim
challenging the manner and execution of the collection of a fine should be
brought in a habeas corpus petition under 28 U.S.C. § 2241 because the claim is
a claim challenging the execution of a sentence. See United States v. Diggs, 578
F.3d 318, 319-20 (5th Cir. 2009). As Harris is serving his sentence in Tennessee,
outside the jurisdiction of the district court, the district court did not have
jurisdiction to consider this claim. See id. at 320.
The district court did not have jurisdiction to consider either of Harris’s
claims, and this appeal is thus “from the denial of a meaningless, unauthorized
motion.” United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994). Harris has
failed to raise any nonfrivolous issues for appeal. See Howard v. King, 707 F.2d
2Case: 09-50932 Document: 00511172970 Page: 3 Date Filed: 07/14/2010
No. 09-50932
215, 220 (5th Cir. 1983). The IFP motion is DENIED, and the appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202; 5 TH C IR. R. 42.2.
This court previously warned Harris that the filing of further frivolous
appeals would invite the imposition of sanctions. See United States v. Harris,
310 F. App’x 705, 707 (5th Cir. 2009); United States v. Harris, No. 04-51338, slip
op. at 2 (5th Cir. Dec. 14, 2005) (unpublished). Nevertheless, Harris has filed
the present frivolous appeal. Accordingly, Harris is ORDERED to pay a sanction
in the amount of $275 to the Clerk of this Court. Harris is BARRED from filing
in this court or in any court subject to this court’s jurisdiction any appeal or any
challenge to his conviction or sentence until the sanction is paid in full without
first obtaining the permission of the forum court. Harris is CAUTIONED that
filing any future frivolous appeals or challenges to his conviction or sentence in
this court or any court subject to this court’s jurisdiction will subject him to
additional and progressively more severe sanctions.
3