United States v. Taylor

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-31103 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DARRYL W. TAYLOR,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Middle District of Louisiana USDC No. 99-CV-261-B-M2 USDC No. 98-CR-24-ALL-B -------------------- May 9, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Darryl W. Taylor has filed a motion for leave to proceed in

forma pauperis (IFP) on appeal. To obtain leave to proceed IFP

on appeal, Taylor must show that he is unable to pay the cost of

his appeal. Jackson v. Dallas Police Dep’t, 811 F.2d 260, 261

(5th Cir. 1986). He must also demonstrate that he will raise a

nonfrivolous issue on appeal. Howard v. King, 707 F.2d 215, 220

(5th Cir. 1983).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-31103 -2-

Taylor wishes to argue on appeal that the district court

erred in denying his motion for release pending disposition of

his 28 U.S.C. § 2255 motion to vacate, set aside, or correct

sentence. Taylor contends that he is entitled to release because

his 28 U.S.C. § 2255 motion raises meritorious issues.

Release pending disposition of a 28 U.S.C. § 2255 motion

will be granted only when the petitioner has raised a substantial

constitutional claim upon which he has a high probability of

success, and also when extraordinary or exceptional circumstances

exist which make the grant of bail necessary to make the habeas

remedy effective. Calley v. Callaway, 496 F.2d 701, 702 (5th

Cir. 1974). Regardless of the merits of Taylor’s claims, upon

which the district court has not yet ruled, Taylor has not

pointed to any “extraordinary or exceptional circumstances” which

necessitate his release to make the post-conviction remedy

effective. The district court did not err by denying Taylor’s

motion for release.

Taylor has not shown that he will raise a nonfrivolous issue

on appeal. Taylor’s motion for leave to proceed IFP on appeal is

DENIED. His appeal is DISMISSED as frivolous pursuant to 5th

Cir. R. 42.2.

IFP MOTION DENIED; APPEAL DISMISSED.