Roy Williams v. Texas Court of Criminal Appeal

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 10, 2020
• Docket: 20-20163
• Status: Unpublished

Opinion

Case: 20-20163 Document: 00515520859 Page: 1 Date Filed: 08/10/2020

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

No. 20-20163 FILED August 10, 2020 Lyle W. Cayce Roy Williams, Clerk

Plaintiff—Appellant,

versus

Texas Court of Criminal Appeals,

Defendant—Appellee.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:20-CV-708

Before Dennis, Southwick, and Engelhardt, Circuit Judges. Per Curiam:* Roy Williams moves this court for leave to proceed in forma pauperis (IFP) to appeal of the district court’s dismissal as frivolous of his petition for a writ of mandamus. Williams’s IFP motion is a challenge to the district court’s determination that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 20-20163 Document: 00515520859 Page: 2 Date Filed: 08/10/2020

No. 20-20163

Before this court, Williams asserts he is financially eligible to proceed IFP and that the district court previously granted him leave to proceed IFP. Williams fails to address the district court’s certification that his appeal was not taken in good faith and the district court’s reasons for its certification decision. See Baugh, 117 F.3d at 202. Pro se briefs are afforded liberal construction. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). Nevertheless, when an appellant fails to identify any error in the district court’s analysis, it is the same as if the appellant had not appealed that issue. See Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Because Williams has failed to challenge the certification that his appeal is not taken in good faith and the reasons for such a certification, he has abandoned the critical issue of his appeal. Id. Thus, his appeal lacks arguable merit and is frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, Williams’s motion for leave to proceed IFP is DENIED, and his appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. His motions for appointment of counsel and for release due to the COVID-19 pandemic also are DENIED. Although his appeal is dismissed as frivolous, we note that the imposition of strikes under 28 U.S.C. § 1915(g) is not appropriate because the proceeding underlying Williams’s petition for a writ of mandamus is a habeas proceeding. See In re Stone, 118 F.3d 1032, 1034 (5th Cir. 1997); cf. In re Jacobs, 213 F.3d 289, 291 (5th Cir. 2000).