USA v. Vincent Bazemore, Jr.

Filing

UNPUBLISHED OPINION FILED. [10-10685 Dismissed for Lack of Jurisdiction] Judge: PEH , Judge: JES , Judge: CH. Mandate pull date is 12/23/2010 [10-10685]

USA v. Vincent Bazemore,:Jr. Case 10-10685

Document: 00511280279 Page: 1 Date Filed: 11/01/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 1, 2010 N o . 10-10685 S u m m a r y Calendar Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. V I N C E N T JOHN BAZEMORE, JR., D e fe n d a n t - Appellant

A p p e a l from the United States District Court for the Northern District of Texas USDC No. 3:09-CV-2237

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* V in c e n t Bazemore, Jr. ("Bazemore") appeals the district court's stay order e n te r e d in the Government's garnishment action resulting from a restitution a w a r d granted pursuant to Bazemore's conviction for securities fraud. United S ta te s v. Bazemore, 3:07-CR-312-M (N.D. Tex. Sept. 22, 2009), appeal dism'd, N o . 09-11005 (5th Cir. Jan. 4, 2010). Concluding that we lack jurisdiction, we D I S M IS S the appeal.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10685 Document: 00511280279 Page: 2 Date Filed: 11/01/2010

No. 10-10685 I . Factual Background and Case History I n 2009, Bazemore pleaded guilty to securities fraud and was sentenced t o imprisonment, supervised release, and restitution of over $15 million. This s e t of facts has been the subject of several appeals by Bazemore, including this o n e . In Case No. 10-10189, he appealed the district court's grant of a motion to s e ll property to collect the restitution, and in Case No. 10-10301, he appealed the d is t r ic t court's denial of his motion to stay the restitution order pending his a c t io n challenging the underlying conviction under 28 U.S.C. § 2255. Those two a c t io n s were consolidated and dismissed as frivolous. United States v. Bazemore, N o s . 10-10189 & 10-10301 (5th Cir. Sept. 17, 2010). His petition for writ of m a n d a m u s to direct the district judge to recuse himself was denied in yet a n o t h e r appeal. In re Bazemore, No. 10-10580 (5th Cir. Aug. 31, 2010). I n Bazemore's § 2255 action, he filed a motion for summary judgment w h ic h was denied. His appeal of that ruling was dismissed for want of

ju r is d ic t io n by this court. United States v. Bazemore, No. 10-10762 (5th Cir. Oct. 6 , 2010). His petition for writ of mandamus regarding the district court's alleged fa ilu r e to rule timely on his § 2255 application remains pending in this court u n d e r Case No. 10-11020.1 T h e current case stems from the Government's further efforts to collect the r e s t it u t io n order in the form of filing a garnishment action with respect to an a n n u ity issued by Principal Life Insurance Company ("Principal Life") and which B a z e m o r e contends is the separate property of his wife, Angelee Bazemore (" A n g e le e " ), who intervened in the district court. Neither Angelee nor Principal

Bazemore also sued an FBI agent alleging wrongful seizure. That case was dismissed as frivolous, Bazemore v. Abbott, No. 3:10-CV-01444 (N.D. Tex. Sept. 29, 2010) and the appeal of that dismissal is pending under No. 10-11032. A prior case against the same FBI agent and others was also dismissed, Bazemore v. Junker, No. 3:10-CV-00720 (N.D. Tex. June 15, 2010), and the appeal was dismissed for want of prosecution. Bazemore v. Junker, No. 10-10480 (5th Cir. Aug. 13, 2010).

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Case: 10-10685 Document: 00511280279 Page: 3 Date Filed: 11/01/2010

No. 10-10685 L ife is a party to this appeal. In the district court, the Government contends t h a t the annuity policy is community property of Bazemore and Angelee, while they contend it is separate property. The district court has not issued a ruling o n this matter, however, because it stayed the garnishment case as a result of t h e pendency of a criminal investigation of a separate fraud from that which g a v e rise to the restitution order. It is this stay order from which Bazemore a p p e a ls . I I. Jurisdiction T h r o u g h his numerous forays into the appellate process, Bazemore should b e very familiar with the concept that this court must have jurisdiction before it entertains an appeal. Nonetheless, he made no effort in his opening brief to a d d r e s s our jurisdiction at all. Instead, he argued only that (1) the Government m is s e d the deadline for filing a forfeiture action; (2) the Principal Life policy is A n g e le e 's separate property; and (3) the "seizure has caused extreme hardship, a n d the continued possession will cause irreparable financial harm." I n response, the Government argued that this court lacks jurisdiction over t h is appeal because the district court's stay order is not final, was not certified b y the district court for interlocutory appeal, and is not in the category of nonfin a l orders that can nonetheless be appealed. Additionally, the Government n o te s Bazemore's lack of standing to assert the alleged harm to Angelee from the s t a y because Bazemore's position is that he has no interest in the Principal Life p o lic y . In his reply brief, Bazemore again fails to address the court's jurisdiction a rg u in g instead that the underlying restitution order cannot be enforced because it exceeded the court's power to enter it.2

As a result, Bazemore has arguably waived this court's consideration of exceptions to the finality rule. See, e.g., Kmart Corp. v. Aronds, 123 F.3d 297, 299 n.4 (5th Cir. 1997) (determining that, by failing to brief the issue, the appellant waived any argument that the collateral order exception applied).

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Case: 10-10685 Document: 00511280279 Page: 4 Date Filed: 11/01/2010

No. 10-10685 W e conclude that the district court's stay order was neither a final ju d g m e n t nor an order in the small category of cases allowing for an in t e r lo c u t o r y appeal. See Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 4 6 0 U.S. 1, 10 & n.11 (1983) (noting the general rule "that a stay is not o r d in a r ily a final decision" unless it puts the plaintiff "effectively out of court") (in t e r n a l citation and quotation marks omitted); Kershaw v. Shalala, 9 F.3d 11, 1 4 (5th Cir. 1993) ("An order staying judicial proceedings is ordinarily not c o n s id e r e d final and is hence not appealable."). The effect of the district court's o r d e r does not effectively put Bazemore "out of court" or deprive him of a federal fo r u m . See Kershaw, 9 F.3d at 14. Nor can it be characterized as a "collateral o r d e r " separate from and collateral to the merits. Id. at 14-15 (discussing

r e q u ir e m e n t s for collateral order review and noting that, to be collateral, an o r d e r "must be separable from, and collateral to, the merits of the principle [sic] c a s e ." ). Bazemore's attack on the stay order is intertwined with and identical to h is attack on the garnishment action: he contends that the annuity policy is A n g e le e 's separate property and, therefore, not subject to garnishment for his d e b t (the criminal restitution order), that the Government waived the right to t h e annuity by failing to file a forfeiture and, more recently, that the underlying r e s t it u t io n order is illegal. None of these issues is "separable from" the

u n d e r ly in g garnishment case. Accordingly, we find no basis for jurisdiction over t h is appeal. We express no opinion on the merits of the underlying garnishment a c tio n . A lt h o u g h Bazemore is entitled to some leeway as a pro se litigant, his c o n t in u a l resort to an appellate court without regard to its jurisdiction must c e a s e . Bazemore is cautioned that filing substantively frivolous appeals or ones o v e r which this court lacks jurisdiction constitutes grounds for sanctions. A P P E A L DISMISSED for want of jurisdiction.

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