United States v. Fryar

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-31321 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH E. FRYAR,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 95-CA-3549 _________________________________________________________________ JULY 17, 1996

Before JOLLY, JONES, and STEWART, Circuit Judges.

PER CURIAM:*

Joseph E. Fryar, #06590-035, appeals the district court's

dismissal of his 28 U.S.C. § 2255 motion for abuse of the procedure

and the denial of his motion for leave to proceed in forma pauperis

on appeal, pursuant to 28 U.S.C. § 1915(a). Fryar argues that the

district court lacked territorial jurisdiction over the 31 U.S.C.

§§ 5313(a) and 5322(b) offenses for failure to file a currency

transaction report.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. Fryar has failed to show cause for not raising his claim in

his previous motion; therefore, this court need not consider

whether there is prejudice. See United States v. Flores, 981 F.2d

231, 234-35 (5th Cir. 1993). Further, failure to hear his claim

would not result in a fundamental miscarriage of justice because he

has not asserted his innocence. See Sawyer v. Whitley, 505 U.S.

333, 339 (1992). The district court did not abuse its discretion

in dismissing Fryar's second § 2255 motion as abusive.

The district court did not err in denying Fryar's motion for

leave to proceed IFP because he can present no legal points

arguable on their merits. See Howard v. King, 707 F.2d 215, 219-20

(5th Cir. 1983).

A F F I R M E D.

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