Shaw v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-40959 Conference Calendar __________________

DONNY RAY SHAW,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION

Respondent-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:90-CV-312 - - - - - - - - - - June 25, 1996 Before HIGGINBOTHAM, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Donny Ray Shaw, (#397642), appeals the denial of his motion

construed by the district court as a motion for relief from

judgment pursuant to Fed. R. Civ. P. 60(b) in this habeas

proceeding under 28 U.S.C. § 2254. Shaw did not appeal the

judgment denying habeas relief, but waited over three years to

file objections to the magistrate judge’s report. Because Shaw

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-40959 -2-

does not address on appeal the issue regarding the district

court's action in denying the Rule 60(b) motion, he has abandoned

the only issue on appeal before this court, and this court need

not address the issue. Brinkmann v. Dallas County Deputy Sheriff

Abner, 813 F.2d 744, 748 (5th Cir. 1987). Accordingly, Shaw's

appeal is DISMISSED AS FRIVOLOUS. See 5th Cir. R. 42.2.

We caution Shaw that any additional frivolous appeals filed

by him will invite the imposition of sanctions. To avoid

sanctions, Shaw is further cautioned to review any pending

appeals to ensure that they do not raise arguments that are

frivolous because they have been previously decided by this

court.

APPEAL DISMISSED; SANCTION WARNING ISSUED.