Opinion
3:12-CR-175-O-33
12-01-2014
UNITED STATES OF AMERICA, v. DWAYNE BRIGHAM, #46056-177 Defendant.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The United States Magistrate Judge made Findings, Conclusions, and a Recommendation in this case. No objections were filed. The District Court reviewed the proposed Findings, Conclusions, and Recommendation for plain error. Finding none, the Court ACCEPTS the Findings, Conclusions, and Recommendation of the United States Magistrate.
IT IS THEREFORE ORDERED that Defendant's motions for transcripts and for leave to proceed in forma pauperis are DENIED and that his motion for clarification of sentence, construed as a habeas corpus petition under 28 U.S.C. § 2241, is DISMISSED without prejudice for lack of jurisdiction.
The Clerk of the Court is directed to open for statistical purposes a new habeas corpus case under 28 U.S.C. § 2241 (nature of suit 530 directly assigned to the same District and Magistrate Judge) on the basis of Defendant's letter motion for clarification of sentence.
The Court prospectively CERTIFIES that any appeal of this action would not be taken in good faith. See 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(3). In support of this certification, the Court adopts and incorporates by reference the Magistrate Judge's Findings, Conclusions, and Recommendation. See Baugh v. Taylor, 117 F.3d 197, 202 and n.21 (5th Cir. 1997). Based on the Findings and Recommendation, the Court finds that any appeal of this action would present no legal point of arguable merit and would, therefore, be frivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). In the event of an appeal, Plaintiff may challenge this certification by filing a separate motion to proceed in forma pauperis on appeal with the Clerk of the Court, U.S. Court of Appeals for the Fifth Circuit. See Baugh, 117 F.3d at 202; F ED . R. APP . P. 24(a)(5).
SO ORDERED this 1st day of December, 2014.
/s/_________
Reed O'Connor
UNITED STATES DISTRICT JUDGE
Federal Rule of Appellate Procedure 4(a) governs the time to appeal an order. A timely notice of appeal must be filed even if the district court certifies an appeal as not taken in good faith.