United States v. Fryar

*Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-31321
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH E. FRYAR,
Defendant-Appellant.
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Appeal from the United States District Court for the
Eastern District of Louisiana
USDC No. 95-CA-3549
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JULY 17, 1996
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Joseph E. Fryar, #06590-035, appeals the district court's
dismissal of his 28 U.S.C. § 2255 motion for abuse of the procedure
and the denial of his motion for leave to proceed in forma pauperis
on appeal, pursuant to 28 U.S.C. § 1915(a). Fryar argues that the
district court lacked territorial jurisdiction over the 31 U.S.C.
§§ 5313(a) and 5322(b) offenses for failure to file a currency
transaction report.

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Fryar has failed to show cause for not raising his claim in
his previous motion; therefore, this court need not consider
whether there is prejudice. See United States v. Flores, 981 F.2d
231, 234-35 (5th Cir. 1993). Further, failure to hear his claim
would not result in a fundamental miscarriage of justice because he
has not asserted his innocence. See Sawyer v. Whitley, 505 U.S.
333, 339 (1992). The district court did not abuse its discretion
in dismissing Fryar's second § 2255 motion as abusive.
The district court did not err in denying Fryar's motion for
leave to proceed IFP because he can present no legal points
arguable on their merits. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983).
A F F I R M E D.

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