United States v. Nwachukwu

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 97-20100 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus EBENEZER EMEKA NWACHUKWU, also known as Andrew Rich Thompson, also known as Frederick Gary Davis, also known as Howard Ron Wilson, also known as Mark Ray Walters, also known as Taylor Bruce McGauin, also known as Mathew Lee Hendrix, Defendant-Appellant. - - - - - - - - - - Appeals from the United States District Court for the Southern District of Texas USDC No. H-96-CV-1773 - - - - - - - - - - June 5, 1998 Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges. PER CURIAM:1 Ebenezer Emeka Nwachukwu, a federal prisoner (# 70896-079), moves to proceed in forma pauperis (“IFP”) from the district court’s dismissal, with prejudice, of his 28 U.S.C. § 2255 motion to vacate his sentence. Nwachukwu filed his § 2255 motion before 1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. he was sentenced for the conviction which he is attacking. The district court was correct in dismissing Nwachukwu’s § 2255 motion, because a criminal defendant ordinarily may not collaterally attack his sentence until it has been affirmed on direct appeal. See United States v. Fassler, 858 F.2d 1016, 1019 (5th Cir. 1988). Because Nwachukwu fails to address the ground upon which his motion was § 2255 motion was dismissed, he fails to present a nonfrivolous issue for appeal. His motion to proceed IFP is therefore DENIED. See FED. R. APP. P. 24(a); Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). Nwachukwu’s appeal is DISMISSED as frivolous. 5TH CIR. R. 42.2. Under Fassler, a prisoner is entitled to refile his § 2255 upon the affirmance of his conviction. See Fassler, 858 F.2d at 1019. Accordingly, the case is REMANDED to the district court for the sole purpose of amending the judgment to reflect that the dismissal of Nwachukwu’s § 2255 motion was “without prejudice.” Nwachukwu’s “Motion to Review All Issues in Case” (filed on August 27, 1997), his “Motion to Remand” (filed on October 23, 1997), his “Motion to Accept 2255 Brief” (filed on December 1, 1997), his “Motion to Withdraw Suspended 2255 Brief” (also filed on December 1, 1997), his “Notice of Motion to Remand” (filed on December 12, 1997), and his “Motion to Remand” (filed on January 12, 1998), are DENIED. IFP DENIED; APPEAL DISMISSED; CASE REMANDED WITH DIRECTIONS; ADDITIONAL MOTIONS DENIED.