United States v. Cullum

185 F. App'x 433

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 21, 2006
• Docket: 05-50589
• Status: Unpublished

Opinion

PER CURIAM: *

Larry Joseph Cullum, federal prisoner # 48858-080, proceeding pro se, moves for leave to proceed in forma pauperis (IFP) on appeal. Cullum seeks to appeal the district court’s order denying his “Request for Leave to File a Motion for Nunc Pro Tunc Amended Judgment Pursuant to the F.R.Civ.P. Rule 60(b)(4) & (6).” In that motion, Cullum argued that his sentence for conspiracy to distribute methamphetamine, manufacturing phenylacetone, and filing false tax returns was illegal under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Cullum’s IFP motion is a challenge to the district court’s certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.1997). For the reasons that follow, Cullum’s IFP motion is denied.

Cullum’s request is correctly characterized as a successive 28 U.S.C. § 2255 motion. See, e.g., United States v. Rich, 141 F.3d 550, 551-52 (5th Cir.1998); 28 U.S.C. §§ 2244(b)(3)(A), 2255. Because Cullum has neither sought nor obtained from this court authorization to file a successive § 2255 motion, his appeal is frivolous and is hereby dismissed. See 5th Cir. R. 42.2. Cullum is warned that the filing of another frivolous pleading in this court will result in the imposition of sanctions.

IFP 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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.