USA v. Cullen Harris
Filing
USA v. Cullen Harris
Doc. 0
Case: 09-50932
Document: 00511172970
Page: 1
Date Filed: 07/14/2010
IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50932 S u m m a r y Calendar July 14, 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. C U L L E N REED HARRIS, 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 Western District of Texas U S D C No. 6:91-43-2
B e fo r e DAVIS, SMITH, and DENNIS, Circuit Judges. P E R CURIAM:* C u lle n Reed Harris, federal prisoner # 01864-063, was convicted of c o n s p ir a c y to manufacture more than 1,000 grams of methamphetamine and m a n u fa c t u r in g more than 1,000 grams of methamphetamine. He was sentenced t o life imprisonment and ten years of supervised release on each count, the s e n te n c e s to be served concurrently, and fined $25,000 on each count, for a total fin e of $50,000. Harris seeks leave to proceed in forma pauperis (IFP) on appeal fr o m 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 09-50932
Document: 00511172970 Page: 2 No. 09-50932
Date Filed: 07/14/2010
h e sought the return of an alleged overpayment on his fine and the vacatur of o n e of his convictions on the ground that the indictment was duplicitous. By seeking leave to proceed IFP, Harris is challenging the district court's c e r t ific a t io n that his appeal is not taken in good faith because it is frivolous. See B a u g h v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); F ED. R. APP. P. 24(a)(5). H a r r is argues that the indictment was duplicitous because both of his c o n v ic t io n s were for the same conduct, making one of his $25,000 fines and one o f his $50 special assessments improper. This claim is a challenge to his
c o n v ic t io n s 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 c o u r t, however, did not have jurisdiction to construe Harris's motion as a § 2255 m o t io n because Harris had previously filed a § 2255 motion and had not received p e r m is s io n from this court to file a successive § 2255 motion. See Hooker v. S iv le y , 187 F.3d 680, 681-82 (5th Cir. 1999). Harris argues that the Government collected $275 more than he owed on h is fines. This claim is a challenge to the manner and execution of the collection o f his fines, not a challenge to any action taken by the district court. A claim c h a lle n g in g the manner and execution of the collection of a fine should be b r o u g h t 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 .3 d 318, 319-20 (5th Cir. 2009). As Harris is serving his sentence in Tennessee, o u ts id e the jurisdiction of the district court, the district court did not have ju r is d ic t io n to consider this claim. See id. at 320. T h e district court did not have jurisdiction to consider either of Harris's c la im s , and this appeal is thus "from the denial of a meaningless, unauthorized m o t io n ." United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994). Harris has fa ile d to raise any nonfrivolous issues for appeal. See Howard v. King, 707 F.2d
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Case: 09-50932
Document: 00511172970 Page: 3 No. 09-50932
Date Filed: 07/14/2010
2 1 5 , 220 (5th Cir. 1983).
The IFP motion is DENIED, and the appeal is
D I S M IS S E D as frivolous. See Baugh, 117 F.3d at 202; 5TH CIR. R. 42.2. T h is court previously warned Harris that the filing of further frivolous a p p e a ls would invite the imposition of sanctions. See United States v. Harris, 3 1 0 F. App'x 705, 707 (5th Cir. 2009); United States v. Harris, No. 04-51338, slip o p . at 2 (5th Cir. Dec. 14, 2005) (unpublished). Nevertheless, Harris has filed t h e 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 c h a lle n g e to his conviction or sentence until the sanction is paid in full without fir s t obtaining the permission of the forum court. Harris is CAUTIONED that filin g any future frivolous appeals or challenges to his conviction or sentence in t h is court or any court subject to this court's jurisdiction will subject him to a d d it io n a l and progressively more severe sanctions.
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