USA v. Jack Zimmerman

Filing

UNPUBLISHED OPINION FILED. [15-10564 Dismissed as Frivolous] Judge: WED , Judge: EHJ , Judge: EBC Mandate pull date is 07/27/2017; denying motion for relief under the inherent powers doctrine filed by Appellant Mr. Jack Zimmerman [8291916-2] [15-10564]

Case: 15-10564

Document: 00514019900

Page: 1

Date Filed: 06/05/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-10564

United States Court of Appeals
Fifth Circuit

FILED
June 5, 2017

UNITED STATES OF AMERICA,

Lyle W. Cayce
Clerk

Plaintiff - Appellee
v.
JACK ZIMMERMAN,
Defendant - Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:12-CV-4108
Before DAVIS, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jack Zimmerman, federal prisoner #39657-177, pleaded guilty in 2010
to enticement of a minor and production of child pornography. He was
sentenced to 360 months of imprisonment and lifetime supervised release.
Zimmerman appealed; this court dismissed the appeal and granted counsel’s
motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). See
United States v. Zimmerman, 461 F. App’x 383, 383–84 (5th Cir. 2012).

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 15-10564
Zimmerman next moved for relief in the district court under
28 U.S.C. § 2255, raising several claims of ineffective assistance of counsel.
The district court denied the motion. Zimmerman filed a timely notice of appeal
from the denial.
While his appeal from the district court’s denial of his § 2255 motion was
pending, Zimmerman moved for reconsideration of his § 2255 motion under
Fed. R. Civ. Pro. 60(b). The district court denied Zimmerman’s Rule 60(b)
motion. This court also denied Zimmerman’s petition for a Certificate of
Appealability (“COA”) to appeal the district court’s denial of his § 2255 motion.
Zimmerman next filed a second Rule 60(b) motion in the district court.
The magistrate judge found that this second motion effectively reiterated
Zimmerman’s ineffective assistance of counsel claims, and so recommended
construing the motion as an unauthorized successive § 2255 motion and
transferring it to this court. Zimmerman objected, arguing that the second
motion did not duplicate the first. The district court overruled Zimmerman’s
objections, adopted the magistrate judge’s findings and conclusions, construed
the motion as a successive § 2255 motion, transferred Zimmerman’s motion to
this court, and denied him a COA. Zimmerman filed a mandamus application
with this court. We denied mandamus relief, but construed the application as
a timely notice of appeal of the transfer order. That appeal is at issue here.
In the meantime, however, after the district court transferred
Zimmerman’s second Rule 60(b) motion to this court as an unauthorized
successive § 2255 motion, Zimmerman filed a timely Rule 59(e) motion in the
district court to alter or amend the transfer order. The district court denied the
motion. Zimmerman appealed the denial of his Rule 59(e) motion. In
considering that appeal, this court expressly observed that Zimmerman’s
appeal of the denial of his Rule 59(e) motion put before this court the issue of
“the propriety of the underlying judgment, the transfer order.” United States
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v. Zimmerman, No. 15-11042, 2017 WL 383374, at *1 (5th Cir. Jan. 26, 2017).
Zimmerman’s only arguments on appeal, however, pertained exclusively to
“claims of ineffective assistance of counsel that he raised in his original § 2255
motion and to the lack of an evidentiary hearing in those proceedings.” Id. This
court concluded that Zimmerman had abandoned his challenge to the transfer
order, and affirmed the district court’s transfer order.
Thus, Zimmerman has already appealed the transfer order. The instant
appeal is duplicative and is DISMISSED as frivolous on that basis. 1 See
Patterson v. Dretke, 95 F. App’x 705, 706 (5th Cir. 2004); Jackson v. Ward, 116
F.3d 477, 477 (5th Cir. 1997) (per curiam); 5th Cir. R. 42.2.

Zimmerman moved in this court for relief under the inherent powers doctrine on the
basis that the Government did not file an opposition brief. That motion is DENIED. See
Naranjo v. Thompson, 809 F.3d 793, 802 (5th Cir. 2015) (quoting ITT Cmty. Dev. Corp. v.
Barton, 569 F.2d 1351, 1362 n.20 (5th Cir. 1978)) (“Action taken by a federal court in reliance
on its inherent powers must somehow be indispensable to reaching a disposition of the case.”).
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