USA v. Melvin Wiand

Filing

UNPUBLISHED OPINION FILED. [15-10835 Dismissed as Frivolous] Judge: CDK, Judge: JLD, Judge: GJC. Mandate pull date is 03/10/2017 [15-10835]

Case: 15-10835

Document: 00513836839

Page: 1

Date Filed: 01/17/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 15-10835
Summary Calendar

FILED
January 17, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MELVIN WIAND,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:15-CV-1843
USDC No. 3:07-CR-352-1
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Melvin Wiand, federal prisoner # 37221-177, has appealed the district
court’s order construing his motion invoking Rule 60(b) of the Federal Rules of
Civil Procedure as a second or successive motion under 28 U.S.C. § 2255 and
transferring the matter to this court for further proceedings. Wiand asserts
that his conviction resulted from a “forged and fabricated” consent-to-search

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

Case: 15-10835

Document: 00513836839

Page: 2

Date Filed: 01/17/2017

No. 15-10835
form and that his attorney rendered ineffective assistance in failing to
challenge the form at the suppression hearing. Because these claims were
raised and rejected in a prior § 2255 proceeding, they are successive. See
Gonzalez v. Crosby, 545 U.S. 524, 532 (2005).
Wiand has not obtained this court’s leave to file a second or successive
§ 2255 motion. See § 2255(h). Accordingly, the motion was unauthorized, and
the district court lacked jurisdiction. See In re Sepulvado, 707 F.3d 550, 556
(5th Cir. 2013). The appeal is DISMISSED AS FRIVOLOUS. See 5TH CIR. R.
42.2. Wiand is WARNED that frivolous, repetitive, or otherwise abusive filings
will invite the imposition of sanctions, including dismissal, monetary
sanctions, and restrictions on his ability to file pleadings in this court and any
court subject to this court’s jurisdiction.

2