Anthony Bailey v. Burl Cain, Warden

Fifth Circuit

Anthony Bailey v. Burl Cain, Warden

481 F. App'x 227

CourtCourt of Appeals for the Fifth Circuit

DecidedSeptember 21, 2012

Docket12-30147

StatusUnpublished

This text of 481 F. App'x 227 (Anthony Bailey v. Burl Cain, Warden) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Anthony Bailey v. Burl Cain, Warden, 481 F. App'x 227 (5th Cir. 2012).

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Opinion

PER CURIAM: *

Anthony G. Bailey, Louisiana prisoner # 297843, appeals the district court’s denial of his motion for leave to file yet another Federal Rule of Civil Procedure 60(b) motion to vacate the final judgment dismissing his 28 U.S.C. § 2254 petition as time barred. Bailey seeks a certificate of appealability (COA) as well as authorization to proceed in forma pauperis (IFP).

Bailey has not demonstrated that the district court abused its discretion by denying his motion for leave to file a Rule 60(b) motion. See Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir.1981). He has not shown that the general order requiring him to request permission to file his pleading is unconstitutional on its face or as applied to him, see Hersh v. U.S. ex rel. Mukasey, 553 F.3d 743, 762 & n. 23 (5th Cir.2008), nor has he demonstrated that the district court should have resolved his motion differently in light of Jimenez v. Quartennan, 555 U.S. 113, 129 S.Ct. 681, 172 L.Ed.2d 475 (2009), see Hernandez v. Thaler, 630 F.3d 420, 430. Accordingly, the judgment of the district court is AFFIRMED.

To the extent that Bailey is required to obtain a COA, see Ochoa Canales v. Quarterman, 507 F.3d 884, 887-88 (5th Cir.2007), his request is DENIED, as he has not made a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Bailey’s motion to proceed IFP is likewise DENIED. Finally, we CAUTION Bailey that future repetitive and frivolous filings may result in the imposition of 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.

*

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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PER CURIAM: *

Anthony G. Bailey, Louisiana prisoner # 297843, appeals the district court’s denial of his motion for leave to file yet another Federal Rule of Civil Procedure 60(b) motion to vacate the final judgment dismissing his 28 U.S.C. § 2254 petition as time barred. Bailey seeks a certificate of appealability (COA) as well as authorization to proceed in forma pauperis (IFP).

Bailey has not demonstrated that the district court abused its discretion by denying his motion for leave to file a Rule 60(b) motion. See Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir.1981). He has not shown that the general order requiring him to request permission to file his pleading is unconstitutional on its face or as applied to him, see Hersh v. U.S. ex rel. Mukasey, 553 F.3d 743, 762 & n. 23 (5th Cir.2008), nor has he demonstrated that the district court should have resolved his motion differently in light of Jimenez v. Quartennan, 555 U.S. 113, 129 S.Ct. 681, 172 L.Ed.2d 475 (2009), see Hernandez v. Thaler, 630 F.3d 420, 430. Accordingly, the judgment of the district court is AFFIRMED.

To the extent that Bailey is required to obtain a COA, see Ochoa Canales v. Quarterman, 507 F.3d 884, 887-88 (5th Cir.2007), his request is DENIED, as he has not made a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Bailey’s motion to proceed IFP is likewise DENIED. Finally, we CAUTION Bailey that future repetitive and frivolous filings may result in the imposition of 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.

*

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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