Wake v. Pratt

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10174
Conference Calendar
WARREN EUGENE WAKE,
Petitioner-Appellant,
versus
SAM PRATT, Warden, Federal Correctional
Institute -- Seagoville,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:98-CV-3026-X
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October 18, 2000
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Warren Eugene Wake, federal prisoner # 49149-080, seeks
leave to proceed in forma pauperis (IFP) in the appeal from the
district court’s order striking from the record his motion for
clarification. By moving for IFP, Wake is challenging the
district court’s certification that IFP status should not be
granted on appeal because his appeal is not taken in good faith.
See Fed. R. App. P. 24(a)(5); Carson v. Polley, 689 F.2d 562, 586
(5th Cir. 1982).

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No. 00-10174
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The district court determined that Wake’s motion for
clarification should be stricken from the record because his
underlying 28 U.S.C. § 2255 proceeding had been transferred to
the Western District of Texas and disposed of in the district
court there. Wake offers no supporting factual or legal argument
why his appeal from this order is taken in good faith. His
failure to identify any error in the district court’s legal
analysis or its application to his lawsuit “is the same as if he
had not appealed that judgment.” Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Because Wake fails to show that he will raise a nonfrivolous
issue on appeal, his motion to proceed IFP is DENIED. See
Carson, 689 F.2d at 586. Because the appeal is frivolous, it is
DISMISSED. 5TH CIR. R. 42.2. Wake’s request for a certificate of
appealability is DENIED. We caution Wake that the filing of
future frivolous appeals may result in the imposition of
sanctions.
IFP DENIED; APPEAL DISMISSED; SANCTIONS WARNING ISSUED.

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