Ulysses Bownes v. Jim Hood

Fifth Circuit

Ulysses Bownes v. Jim Hood

518 F. App'x 267

CourtCourt of Appeals for the Fifth Circuit

DecidedMarch 29, 2013

Docket12-60711

StatusUnpublished

This text of 518 F. App'x 267 (Ulysses Bownes v. Jim Hood) 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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Ulysses Bownes v. Jim Hood, 518 F. App'x 267 (5th Cir. 2013).

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Opinion

PER CURIAM: *

Ulysses Bownes, Mississippi prisoner # L0115, appeals the dismissal of his in forma pauperis (IFP), pro se complaint, which raised claims pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2254. The district court dismissed Bownes’s § 1983 claim as frivolous and for failure to state a claim and imposed a 28 U.S.C. § 1915(g) strike for the dismissal. The district court dismissed Bownes’s § 2254 claim without prejudice. See Serio v. Members of La. St. Bd. of Pardons, 821 F.2d 1112, 1119 (5th Cir.1987); Preiser v. Rodriguez, 411 U.S. 475, 494, 499-500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).

As an initial matter, Bownes’s motions to file supplemental authorities are granted. His motion for appointment of counsel is denied.

Although the district court did not rule upon whether a certificate of appealability was warranted, see 28 U.S.C. § 2253(c)(1)(A), we will not reach this jurisdictional issue due to the frivolous nature of Bownes’s appeal. Cf. United States v. Alvarez, 210 F.3d 309, 310 (5th Cir.2000). Bownes has abandoned by failing to challenge the district court’s dismissal of his § 1983 claims and the denial of habeas relief. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993).

Bownes’s appeal is without arguable merit and thus is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983). Because the appeal is frivolous, it is dismissed. See 5th Cir. R. 42.2. The dismissal of this appeal as frivolous counts as a strike under § 1915(g), as does the district court’s dismissal of the complaint. See § 1915(g); Patton v. Jefferson Correctional Center, 136 F.3d 458, 463-64 (5th *268 Cir.1998); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996). Bownes is warned that if he accumulates three strikes, he may not proceed IFP in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g).

MOTION TO FILE SUPPLEMENTAL AUTHORITIES GRANTED; MOTION FOR APPOINTMENT OF COUNSEL DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.

*

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: *

Ulysses Bownes, Mississippi prisoner # L0115, appeals the dismissal of his in forma pauperis (IFP), pro se complaint, which raised claims pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2254. The district court dismissed Bownes’s § 1983 claim as frivolous and for failure to state a claim and imposed a 28 U.S.C. § 1915(g) strike for the dismissal. The district court dismissed Bownes’s § 2254 claim without prejudice. See Serio v. Members of La. St. Bd. of Pardons, 821 F.2d 1112, 1119 (5th Cir.1987); Preiser v. Rodriguez, 411 U.S. 475, 494, 499-500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).

As an initial matter, Bownes’s motions to file supplemental authorities are granted. His motion for appointment of counsel is denied.

Although the district court did not rule upon whether a certificate of appealability was warranted, see 28 U.S.C. § 2253(c)(1)(A), we will not reach this jurisdictional issue due to the frivolous nature of Bownes’s appeal. Cf. United States v. Alvarez, 210 F.3d 309, 310 (5th Cir.2000). Bownes has abandoned by failing to challenge the district court’s dismissal of his § 1983 claims and the denial of habeas relief. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993).

Bownes’s appeal is without arguable merit and thus is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983). Because the appeal is frivolous, it is dismissed. See 5th Cir. R. 42.2. The dismissal of this appeal as frivolous counts as a strike under § 1915(g), as does the district court’s dismissal of the complaint. See § 1915(g); Patton v. Jefferson Correctional Center, 136 F.3d 458, 463-64 (5th *268 Cir.1998); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996). Bownes is warned that if he accumulates three strikes, he may not proceed IFP in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g).

MOTION TO FILE SUPPLEMENTAL AUTHORITIES GRANTED; MOTION FOR APPOINTMENT OF COUNSEL DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.

*

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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518 F. App'x 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ulysses-bownes-v-jim-hood-ca5-2013.

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