United States v. Esparza

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-50266 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MANUEL ESPARZA, JR.,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. W-95-CV-358 - - - - - - - - - - December 3, 1996 Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.

PER CURIAM:*

Manuel Esparza, Jr., has filed a motion to appeal in forma

pauperis (IFP) the district court’s denial of his motion pursuant

to 28 U.S.C. § 2255. Having reviewed Esparza’s motion, appellate

brief and the record, we find that Esparza knowingly and

voluntarily waived his right to seek relief under § 2255. See

United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).

The court has not yet decided whether a certificate of

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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. 96-50266 - 2 -

appealability (“COA”) is required under the circumstances of this

appeal or whether the Prison Litigation Reform Act of 1995 (PLRA)

applies to appeals from the denial of federal habeas relief. See

28 U.S.C. § 2253; see also Pub. L. No. 104-134, 110 Stat. 1321

(PLRA). We need not resolve those issues here because we

conclude that the appeal does not involve a nonfrivolous

appellate issue. Accordingly, we DENY the motion for IFP and

DISMISS the appeal as frivolous. Howard v. King, 707 F.2d 215,

219-20 (5th Cir. 1983); 5th Cir. R. 42.2. Esparza’s motion for

appointment of counsel is DENIED also.

IFP DENIED; APPOINTMENT OF COUNSEL DENIED; APPEAL DISMISSED.