Russell Hill v. State of Mississippi

Filing

UNPUBLISHED OPINION ORDER FILED. [16-60815 Dismissed as Frivolous] Judge: JLD , Judge: LHS , Judge: SAH Mandate pull date is 10/16/2017; denying motion to proceed IFP filed by Appellant Mr. Russell K. Hill [8399831-2] [16-60815]

Case: 16-60815

Document: 00514169401

Page: 1

Date Filed: 09/25/2017

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

No. 16-60815
Summary Calendar

FILED
September 25, 2017
Lyle W. Cayce
Clerk

RUSSELL K. HILL,
Plaintiff-Appellant
v.
STATE OF MISSISSIPPI,
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:10-CV-16

Before DENNIS, SOUTHWICK and HIGGINSON, Circuit Judges.
PER CURIAM: *
Russell K. Hill, Mississippi prisoner # L3506, moves for leave to proceed
in forma pauperis (IFP) in this appeal of the district court’s sua sponte
dismissal of his motion to reinstate or reopen proceedings pertaining to his
2010 petition for writ of mandamus on the ground that the district court’s
judgment denying the petition was void ab initio.

In the petition, Hill

requested that the district court compel the Mississippi Supreme Court to file

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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his state habeas application challenging his conviction and sentence for armed
robbery.
The district court denied the motion to reopen and denied Hill leave to
proceed IFP on appeal, certifying that Hill’s appeal was not taken in good faith
pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate Procedure
24(a)(3)(A). Thus, the instant motion is a challenge to the district court’s
certification that the appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a).
Hill has not shown that his appeal involves legal points arguable on their
merits.

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

His

argument that the district court should have directed the Mississippi Supreme
Court to consider his state habeas application is without merit, see Moye v.
Clerk, DeKalb County Superior Court, 474 F.2d 1275, 1276 (5th Cir. 1973), and
he has not raised a nonfrivolous challenge to the denial of his motion to
reinstate or reopen proceedings under Federal Rule of Civil Procedure 60(b)(4),
as he has not shown that the district court lacked subject matter or personal
jurisdiction or “acted in a manner inconsistent with due process of law,” Carter
v. Fenner, 136 F.3d 1000, 1006 (5th Cir. 1998) (internal quotations marks and
citation omitted).
Accordingly, his motion for leave to proceed IFP on appeal is DENIED.
Further, because “it is apparent that an appeal would be meritless,” Baugh,
117 F.3d at 202 n.24, the appeal is DISMISSED as frivolous. See 5TH CIR.
R. 42.2. Hill is CAUTIONED that future frivolous, repetitive, or otherwise
abusive challenges to his conviction and sentence will subject him to sanctions,
including dismissal, monetary sanctions, and restrictions on his ability to file
pleadings in this court or any court subject to this court’s jurisdiction. He

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should review any pending appeals and actions and move to dismiss any that
are frivolous.

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