USA v. Howard Grant

Filing

UNPUBLISHED OPINION ORDER FILED. [16-20138 Dismissed as Frivolous] Judge: EGJ , Judge: JLW , Judge: LHS Mandate pull date is 05/25/2017; denying motion for certificate of appealability [8188113-2] [16-20138]

Case: 16-20138

Document: 00513937178

Page: 1

Date Filed: 04/03/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-20138

United States Court of Appeals
Fifth Circuit

FILED
April 3, 2017

UNITED STATES OF AMERICA,

Lyle W. Cayce
Clerk

Plaintiff-Appellee
v.
HOWARD GRANT,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CV-2344
USDC No. 4:09-CR-424-3
Before JOLLY, WIENER, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Howard Grant, former federal prisoner # 43671-279, was sentenced to
41-month concurrent terms of imprisonment following jury-trial convictions for
conspiracy to commit health care fraud, see 18 U.S.C. § 1349, and aiding and
abetting in the same, see 18 U.S.C. § 1347. United States v. Grant, 683 F.3d
639, 641 (5th Cir. 2012). Grant seeks to challenge the district court’s denial of
(a) his December 2015 motion under Federal Rule of Civil Procedure 60(b)(6)

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-20138
for relief from an order of May 8, 2014, dismissing as successive the January
2014 motion he filed for relief under 28 U.S.C. § 2255 and (b) his subsequent
Rule 60(b)(6) motion for relief from the denial of the earlier Rule 60(b)(6)
motion. Those motions challenge a defect in § 2255 proceedings brought by
Grant in January 2014.
Grant needs a COA to proceed. See Ochoa Canales v. Quarterman, 507
F.3d 884, 887-88 (5th Cir. 2007). Getting a COA requires a showing that
“reasonable jurists could debate . . . that the issues presented were adequate
to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.
473, 475 (2000) (internal quotation marks omitted). The district court did not
rule whether Grant was entitled to a COA. Because of the lack of a COA ruling
by the district court, we may assume without deciding that we lack jurisdiction
over the issues presented. See Rule 11(A), Rules Governing § 2255 Proceedings
for the United States District Courts. However, we will decline to remand in
order for the district court to make the COA determination in the first instance
if remand would be futile and a waste of judicial resources. See United States
v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000).
Ordinarily, Rule 60(b) proceedings involve “limited and deferential
appellate review.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). The movant
must show extraordinary circumstances to justify an award of relief under
Rule 60(b)(6). Gonzalez, 545 U.S. at 535; Hess v. Cockrell, 281 F.3d 212, 216
(5th Cir. 2002).
Precedent forecloses Grant’s argument that a district court is without
jurisdiction to adjudicate a § 2255 motion before a direct appeal is terminated
by the expiration of the period for seeking a writ of certiorari from the Supreme
Court. See United States v. Ortega, 859 F.2d 327, 334 (5th Cir. 1988). Grant’s
claim is thus unsupported by “legal points arguable on their merits” and is

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frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Because
Grant’s continued urging of it in motions for reconsideration does nothing but
repeat frivolity, no jurist of reason might conclude that this appeal should
proceed. See id.; Slack, 529 U.S. at 484; Ortega, 859 F.2d at 334. Remand
would therefore be futile and would waste judicial resources. See Alvarez, 210
F.3d at 310.
Grant is WARNED that frivolous, repetitive, or otherwise abusive filings
will invite the imposition of sanctions, which may include dismissal, monetary
sanctions, and restrictions on his ability to file pleadings in this court and any
court subject to this court’s jurisdiction. See Coghlan v. Starkey, 852 F.2d 806,
817 n.21 (5th Cir. 1988).
APPEAL

DISMISSED;

COA

DENIED;

ISSUED.

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SANCTION

WARNING