United States v. Keys

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 18, 1999
• Docket: 99-60066
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Nos. 98-60431 and 99-60066 USDC No. 3-94-CV-47 USDC No. 3:95-CV-38 USDC No. 3:93-CR-154-2-S

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BOBBY EARL KEYS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Mississippi --------------------

August 12, 1999

Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Bobby Earl Keys, federal inmate #03344-043, appeals the

district court’s denial of his motions for a new trial filed

purportedly under Fed. R. Crim. P. 33, his motions for coram

nobis relief (No. 98-60431), and his motion to vacate, set aside,

or correct sentence filed pursuant to 28 U.S.C. § 2255 motion

(No. 99-60066). Keys contends that the Government did not prove

that the Medical Branch of the Bank of New Albany was insured by

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Nos. 98-60431 & 99-60066 - 2 -

the Federal Deposit Insurance Corporation at the time of the

robbery and that the district court’s instructions to the jury

that the parties stipulated that the bank was insured removed an

essential element of the crime from the jury’s determination. We

sua sponte consolidate the appeals pursuant to Fed. R. App.

P. 3(b).

In Keys’s October 1996 motion, filed purportedly under Fed.

R. Crim. P. 33, he asserted that his trial counsel provided

ineffective assistance by failing to object to the “mugshots”

which were introduced at trial. Keys does not assert ineffective

assistance claims in this court. Keys has not preserved any

issue for this court’s consideration. See Brinkmann v. Dallas

County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987)

(this court will not raise and discuss legal issues that the

appellant has failed to assert).

Keys’s Rule 33 motion filed in June 1997 was untimely filed

under former Rule 33 and amended Rule 33. The district court did

not err in denying relief.

The district court did not err in denying Keys’s motions for

coram nobis relief. See United States v. Drobny, 955 F.2d 990,

996 (5th Cir. 1992) (a writ of error coram nobis is the

appropriate procedural vehicle for attacking a conviction when a

defendant is no longer in custody). Accordingly, Keys’s motion

for a certificate of appealability (COA) is DENIED as

unnecessary, and his appeal in No. 98-60431 is DISMISSED as

frivolous. See 5th Cir. R. 42.2. Nos. 98-60431 & 99-60066 - 3 -

Keys moves for leave to proceed in forma pauperis (IFP) in

Appeal No. 99-60066. A movant for IFP on appeal must show that

he is a pauper and that he will present a nonfrivolous issue on

appeal. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).

Keys does not provide argument on any of the issues raised

in his § 2255 motion in the district court. Because Keys

provides no argument on the only appealable issue, the propriety

of the district court’s dismissal of his § 2255 motion, he has

not established a nonfrivolous issue for appeal. His motion to

proceed IFP is DENIED. Keys’s appeal is frivolous. Because the

appeal is frivolous, the appeal in No. 99-60066 is DISMISSED.

See 5th Cir. R. 42.2. We caution Keys that any additional

frivolous appeals filed by him or on his behalf will invite the

imposition of sanctions. To avoid sanctions, Keys is further

cautioned to review any pending appeals to ensure that they do

not raise arguments that are frivolous.

Keys has filed a myriad of other motions in this court. The

motions are DENIED.

APPEAL NO. 98-60431 DISMISSED AS FRIVOLOUS; COA DENIED AS

UNNECESSARY; IFP DENIED; APPEAL NO. 99-60066 DISMISSED AS

FRIVOLOUS; SANCTION WARNING ISSUED; ALL OUTSTANDING MOTIONS

DENIED.