Labosco v. Purdy

* 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that this opinion should not be published and is not precedent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. 00-40187
Conference Calendar
JOSEPH LABOSCO,
Petitioner-Appellant,
versus
MICHAEL PURDY, Warden,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-00-CV-4
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August 24, 2000
Before KING, Chief Judge, and POLITZ and WIENER, Circuit Judges.
PER CURIAM:*
Joseph LaBosco, federal prisoner #29463-053, appeals the
district court’s denial, as not taken in good faith, of his
motion to proceed in forma pauperis on appeal. LaBosco argues
that, since he cannot file a successive § 2255 motion, his only
available remedy to challenge his illegal incarceration is a
§ 2241 petition. LaBosco contends that a § 2255 motion is
inadequate or ineffective because any attempt to file such a
motion would be dismissed as successive.

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No. 00-40187
-2-
LaBosco’s argument is foreclosed by Fifth Circuit precedent.
See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. May 3, 2000)
(a prior unsuccessful § 2255 motion, or the inability to meet the
Anti-terrorism and Effective Death Penalty Act of 1996's “second
or successive” requirement does not make § 2255 inadequate or
ineffective because the petitioner is simply attempting to
circumvent the limitations on filing successive § 2255 motions).
Accordingly, his appeal is frivolous. His motion for IFP is
denied, and his appeal dismissed. See 5TH CIR. R. 42.2.
IFP DENIED; APPEAL DISMISSED.

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