David Singleton v. Keith Cooley, Warden

Filing

UNPUBLISHED OPINION ORDER FILED. [16-30140 Dismissed as Frivolous] Judge: EGJ, Judge: WED, Judge: LHS. Mandate pull date is 03/08/2017; denying motion to expedite appeal filed by Appellant Mr. David Thomas Singleton [8376138-2]; granting motion to file appellant's supp brief filed by Appellant Mr. David Thomas Singleton [8187329-2]; denying motion to proceed IFP filed by Appellant Mr. David Thomas Singleton [8159419-2]; denying motion to appoint counsel filed by Appellant Mr. David Thomas Singleton [8154701-2] [16-30140]

Case: 16-30140

Document: 00513876220

Page: 1

Date Filed: 02/15/2017

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

No. 16-30140
Summary Calendar

FILED
February 15, 2017
Lyle W. Cayce
Clerk

DAVID THOMAS SINGLETON,

Petitioner-Appellant
v.
KEITH COOLEY, WARDEN, ALLEN CORRECTIONAL CENTER,
Respondent-Appellee
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 2:15-CV-599
Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
David Thomas Singleton, previously Louisiana state prisoner # 81080,
moves this court for leave to proceed in forma pauperis (IFP) on appeal from
the district court’s denial of his 28 U.S.C. § 2241 motion. The § 2241 motion,
which Singleton filed while incarcerated in Louisiana, challenges his sentence,
including the continued state oversight on parole. See U.S. Const. art. III, § 2;
Spencer v. Kemna, 523 U.S. 1, 7 (1998).

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-30140

Document: 00513876220

Page: 2

Date Filed: 02/15/2017

No. 16-30140
Singleton fails to show a nonfrivolous issue for appeal as to his successive
28 U.S.C. § 2254 claims. See 28 U.S.C. §§ 1915(a)(1), 2244(b)(3)(A); Carson v.
Polley, 689 F.2d 562, 586 (5th Cir. 1982). In his prior § 2254 application,
Singleton

presented

his

argument

that

his

1993

resentencing

unconstitutionally increased his punishment. See Leal Garcia v. Quarterman,
573 F.3d 214, 220 (5th Cir. 2009). In the same proceeding, he challenged the
calculation of his release date based on the resentencing, a claim also governed
by § 2254. See Whitehead v. Johnson, 157 F.3d 384, 385 & n.1 (5th Cir. 1998).
As to his double jeopardy claim, Singleton knew in 1993 that he was being
resentenced for the same offense. That defect could have been raised in his
original § 2254 application and is now successive. See Leal Garcia, 573 F.3d
at 220. Because these claims are successive, Singleton needed this court’s
authorization to file, notwithstanding the district court’s time-bar dismissal of
his prior § 2254 application. See In re Flowers, 595 F.3d 204, 205 (5th Cir.
2009).
Singleton additionally argues that fraud upon the court and a conspiracy
prevented the vindication of his rights in his original § 2254 proceeding and
later motion to file a successive § 2254 application. The record does not support
this claim. In any event, a § 2241 petition is not the proper vehicle to challenge
the result of a prior § 2254 proceeding. The fraud claim also presents no
nonfrivolous issue for appeal. See Carson, 689 F.2d at 586.
The motion to proceed IFP on appeal is DENIED. Singleton’s motion to
file a supplemental brief is GRANTED, but his motions for appointment of
counsel and to expedite the appeal are DENIED. The appeal is DISMISSED.
See 5th Cir. R. 42.2.

2