USA v. Mark Hays

Filing

UNPUBLISHED OPINION ORDER FILED. [09-11126 Dismissed as Frivolous] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 10/04/2010; denying motion to proceed IFP filed by Appellant Mr. Mark Linnear Hays [6514337-2] [09-11126]

USA v. Mark Hays

Doc. 0

Case: 09-11126

Document: 00511231460

Page: 1

Date Filed: 09/13/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-11126 S u m m a r y Calendar September 13, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. M A R K LINNEAR HAYS, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 3:95-CR-141-2

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* M a r k Linnear Hays, federal prisoner # 46431-019, seeks leave to proceed in forma pauperis (IFP) on appeal from the district court's denial of his 18 U.S.C. § 3559(c)(7) motion for resentencing. In 1996, Hays was convicted of conspiracy t o obstruct commerce by robbery (count 1), obstruction of commerce by robbery (c o u n t 2), using and carrying a firearm during and in relation to a crime of v io le n c e (count 3), and possession of a firearm by a felon (count 5), and was s e n te n c e d to two consecutive terms of life imprisonment on counts 2 and 3,
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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p u r s u a n t to § 3559(c), the federal "three strikes law," and to additional terms of im p r is o n m e n t on the remaining counts. By moving to proceed IFP, Hays is c h a lle n g in g the district court's certification decision that his appeal was not t a k e n in good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 2 0 2 (5th Cir. 1997). P u r s u a n t to § 3559(c)(7), a defendant shall be resentenced if a prior c o n v ic t io n that was a basis for sentencing under § 3559 "is found, pursuant to a n y appropriate State or Federal procedure, to be unconstitutional or is vitiated o n the explicit basis of innocence, or if the convicted person is pardoned on the e x p lic it basis of innocence." § 3559(c)(7). Although Hays asserts that two of his p r io r convictions were dismissed, he does not argue that those convictions were fo u n d to be unconstitutional or were vitiated on the explicit basis of innocence o r that he was pardoned on the explicit basis of innocence. His failure to

c h a lle n g e to the magistrate judge's determination, adopted by the district court, t h a t he did not qualify for resentencing under § 3559(c)(7) is the same as if he h a d not appealed the judgment. Brinkmann v. Dallas County Deputy Sheriff A b n e r , 813 F.2d 744, 748 (5th Cir. 1987). H a y s states in his IFP motion that he will raise the following issues on a p p e a l: (1) the use of his prior pending charges to enhance his sentence violated § 3559(c) and Congressional intent; (2) those pending charges have now been d i s m is s e d , barring their use for § 3559(c) sentencing purposes; (3) the district c o u r t erroneously sentenced him pursuant to a preponderance-of-the-evidence s t a n d a r d , in violation of 18 U.S.C. § 851(c)(1); (4) the Government's e n h a n c e m e n t notice erroneously listed one prior burglary conviction as two prior c o n v ic t io n s , neither of which should have been considered as "serious violent fe lo n ie s " ; and (5) the denial of his constitutional right to counsel on direct appeal s h o u ld be considered a total miscarriage of justice in this case. He raises only t h r e e issues in his appellate brief: (1) the sentencing court abused its discretion in applying § 3559 based on charges that were pending and now have been 2

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d is m is s e d ; (2) the United States Attorney was vindictive in seeking life im p r is o n m e n t under the three-strikes law; and (3) plain error was overlooked on d ir e c t appeal, where he was denied his constitutional right to counsel, causing a miscarriage of justice. N o n e of these alleged errors are grounds for resentencing under § 3559(c)(7), and Hays does not argue that they are. Hays has failed to show t h a t he will raise a nonfrivolous issue on appeal. See Howard v. King, 707 F.2d 2 1 5 , 220 (5th Cir. 1983). Accordingly, his motion for IFP is DENIED. Because t h e appeal is frivolous, it is DISMISSED. See 5TH CIR. R. 42.2.

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