Opinion
No. 06-30864 Summary Calendar.
April 3, 2007.
Cristina Walker, Assistant U.S. Attorney, U.S. Attorney's Office Western, District of Louisiana, Shreveport, LA, for Plaintiff-Appellee.
Joe Allan Bounds, Jesup, GA, pro se.
Appeal from the United States District Court for the Western District of Louisiana, USDC No. 5:88-CR-50038-2.
Before SMITH, WIENER, and OWEN, Circuit Judges.
Defendants-Appellant Joe Allen Bounds, federal prisoner 18363-077, seeks our authorization to proceed in forma pauperis (IFP) in his appeal from the district court's denial of his FED. R. CIV. P. 60(b) motion as an unauthorized successive 28 U.S.C. § 2255 motion. He argues that the district court erred in construing his as a successive § 2255 motion because he only challenged a defect in the integrity of his 1996 post-conviction proceedings. The district court also determined that Bounds's motion was untimely, and he contests that finding as well. Bounds also challenges the district court's denial of motions to unseal and produce documents pertaining to a Rule 35 motion filed by the government in the case of Bounds's co-defendant, and he has filed a motion to include in the appellate record documents pertaining to that Rule 35 motion. Bounds further complains that the district court failed to conduct an evidentiary hearing.
Bounds's Rule 60(b) motion asserted the same claims raised in a previous § 2255 motion. As such, the district court properly construed his Rule 60(b) motion as a successive § 2255 motion. See United States v. Rich, 141 F.3d 550, 553 (5th Cir. 1998); Gonzalez v. Crosby, 545 U.S. 524, 532-33, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). The district court was without jurisdiction to consider a successive § 2255 motion. See 28 U.S.C. §§ 2244(b)(3)(A), 2255; United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). Therefore, it is unnecessary to address the district court's finding that Bounds's motion was untimely filed or the court's denial of his motions to produce documents and conduct an evidentiary hearing.
As Bounds has not demonstrated a non-frivolous issue for appeal, he may not proceed IFP. See FED. R.APP. P. 24(a). His appeal is without arguable merit and is dismissed as frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2; see also Baugh v. Taylor, 117 F.3d 197, 201-02 (5th Cir. 1997). His motion for the designation of the record on appeal is denied as well. Bounds is warned that future frivolous filings in this court or in the district court, or the future prosecution of frivolous actions or appeals, will invite the imposition of sanctions, including monetary penalties and restrictions of his ability to file actions and appeals.
ALL OUTSTANDING MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.