Opinion
No. 06-50303 Summary Calendar.
January 5, 2007.
Joseph H. Gay, Jr. Assistant U.S. Attorney, U.S. Attorney's Office Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
Jimmy Arreola Ramos, Beaumont, TX, pro se.
Appeal from the United States District Court for the Western District of Texas USDC No. 7:95-CR-64.
Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.
Jimmy Arreola Ramos, federal prisoner # 58020-080, pleaded guilty and was convicted in 1996 of conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine. Ramos moves for in forma pauperis (IFP) status to appeal the district court's denial of his petition for writ of coram nobis challenging the referenced 1996 conviction. See 28 U.S.C. § 1651. Ramos is presently incarcerated pursuant to a sentence on a different, subsequent conviction. Upon expiration of that sentence, he will begin serving the 12-month sentence imposed upon revocation of his supervised release on the 1996 conviction.
The district court certified that the appeal was not taken in good faith. By moving for leave to proceed IFP, Ramos is challenging the district court's certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a)(5). However, Ramos has not demonstrated any non-frivolous ground for appeal.
A petitioner who is serving two consecutive sentences is "in custody" for purposes of challenging the second sentence via a habeas petition while he is serving the first sentence. See Peyton v. Rowe, 391 U.S. 54 (1968); Maleng v. Cook, 490 U.S. 488, 490-93 (1989); United States v. Shaid, 937 F.2d 228, 230 n. 2 (5th Cir. 1991) (en banc). Thus, the district court did not err in concluding that Ramos's in-custody status made coram nobis unavailable to him. See United States v. Drobny, 955 F.2d 990, 996 (5th Cir. 1992).
Ramos has failed to establish that he seeks to present a non-frivolous issue for appeal. Accordingly, his motion for IFP is denied, and the appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 n. 24; 5TH CIR. R. 42.2.
MOTION FOR IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS.