USA v. David Vogel
UNPUBLISHED OPINION ORDER FILED. [14-40136 Dismissed as Frivolous] Judge: WED , Judge: EBC , Judge: GJC Mandate pull date is 04/23/2015; denying motion to proceed IFP filed by Appellant Mr. David Alan Vogel [7740926-2]; denying motion for bail pending appeal filed by Appellant Mr. David Alan Vogel [7662567-2] [14-40136]
Date Filed: 03/02/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
March 2, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA,
DAVID ALAN VOGEL, also known as David Allan Vogel,
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:13-CV-323
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
David Alan Vogel, federal prisoner # 09472-049, has filed a motion for
leave to proceed in forma pauperis (IFP) on appeal. To obtain leave to proceed
IFP on appeal, Vogel must demonstrate financial eligibility and a nonfrivolous
issue for appeal. See FED. R. APP. P. 24(a); 28 U.S.C. § 1915(a)(1); Carson v.
Polley, 689 F.2d 562, 586 (5th Cir. 1982).
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 03/02/2015
Vogel seeks to appeal the district court’s denial of his motion for release
pending disposition of his 28 U.S.C. § 2255 motion. Release should be granted
to an offender pending collateral review “only when the petitioner has raised
substantial constitutional claims upon which he has a high probability of
success, and also when extraordinary or exceptional circumstances exist which
make the grant of bail necessary to make the habeas remedy effective.” Calley
v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974).
In his IFP motion and supporting brief, Vogel argues that the
extraordinary circumstance of excessive delay exists and that his postconviction remedy will not be effective unless he is released. Regardless of the
merits of Vogel’s § 2255 claims, upon which the district court has not yet ruled,
Vogel has failed to show the existence of any “extraordinary or exceptional
circumstances” necessitating his release to make the post-conviction remedy
effective. See Calley, 496 F.2d at 702-03 & n.1. Although Vogel is correct that
the district court did not apply the Calley standard, we conclude that the
district court did not err in denying Vogel’s motion for release based on the
application of the proper standards. See id.
Vogel has not demonstrated that he will raise a nonfrivolous issue on
appeal. His motion for leave to proceed IFP on appeal is DENIED. Vogel’s
appeal is DISMISSED as frivolous pursuant to 5TH CIR. R. 42.2. To the extent
that Vogel’s pleadings may be construed as a motion for release pending appeal
directed to this court, no appeal is pending and such motion is DENIED.
IFP DENIED; RELEASE PENDING APPEAL DENIED; APPEAL
DISMISSED AS FRIVOLOUS.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?