USA v. Thaddeus Richardson


UNPUBLISHED OPINION ORDER FILED. [16-31257 Dismissed as Frivolous] Judge: JES , Judge: JLW , Judge: CH. Mandate pull date is 11/30/2017; denying motion to proceed IFP filed by Appellant Mr. Thaddeus Richardson [8433467-2]; denying motion for certificate of appealability filed by Appellant Mr. Thaddeus Richardson [8433464-2] [16-31257]

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Case: 16-31257 Document: 00514188171 Page: 1 Date Filed: 10/09/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-31257 United States Court of Appeals Fifth Circuit FILED October 9, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff−Appellee, versus THADDEUS RICHARDSON, Defendant−Appellant. Appeal from the United States District Court for the Eastern District of Louisiana No. 2:14-CV-1375 Before SMITH, WIENER, and HAYNES, Circuit Judges. PER CURIAM: * Thaddeus Richardson, federal prisoner #32639-034, was convicted of 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-31257 Document: 00514188171 Page: 2 Date Filed: 10/09/2017 No. 16-31257 possession with intent to distribute a mixture or substance containing a detectable amount of heroin and possession of firearms in furtherance of a drug trafficking crime. He seeks a certificate of appealability (“COA”) to appeal the denial of a postjudgment motion for reconsideration of the denial of his 28 U.S.C. § 2255 motion. He request in forma pauperis (“IFP”) status on appeal. The postjudgment motion is construed as a motion made under Federal Rule of Civil Procedure 60(b). See Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 667−68 (5th Cir. 1986) (en banc); FED. R. CIV. P. 60(b). In his motion, Richardson, in an attempt to reopen the time limit for seeking relief from this court, sought to have the district court reinstate its order of dismissal of his § 2255 motion. Because the motion merely sought to reinstate appellate jurisdiction, and did not constitute an attack on the district court’s resolution of his claims on the merits or add a new ground for relief, a COA is unnecessary. See Gonzalez v. Crosby, 545 U.S. 524, 532−33 (2005); Dunn v. Cockrell, 302 F.3d 491, 491−92 & n.1 (5th Cir. 2002). Richardson’s case is therefore before this court on his motion to appeal IFP, and this court’s inquiry “is limited to whether the appeal involves ‘legal points arguable on their merits (and therefore not frivolous).’” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (citation omitted). The district court did not abuse its discretion by denying Richardson’s motion. See Perez v. Stephens, 745 F.3d 174, 177−79 (5th Cir. 2014); Hernandez v. Thaler, 630 F.3d 420, 428 (5th Cir. 2011); Dunn, 302 F.3d at 492−93. This appeal lacks arguable merit and is DISMISSED. See Howard, 707 F.2d at 220; 5TH CIR. R. 42.2. The motion for a COA is DENIED as unnecessary. The motion to proceed IFP is DENIED. 2

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