Case: 10-50988 Document: 00511455654 Page: 1 Date Filed: 04/25/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 25, 2011
No. 10-50988
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
WILLIAM PAUL SHAVER,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:05-CR-148-1
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
William Paul Shaver, federal prisoner # 30030-008, was convicted of theft
of mail matter (count one), altering a financial obligation (count two), possessing
counterfeit obligations (count three), and access device fraud (count four). He
was sentenced to 60 months of imprisonment on count one and 120 months of
imprisonment on counts two, three, and four, all to be served concurrently with
each other and with Shaver’s sentences for two other Tarrant County
convictions. He was also sentenced to pay $4,155 in restitution.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-50988 Document: 00511455654 Page: 2 Date Filed: 04/25/2011
No. 10-50988
Shaver now moves this court for leave to proceed in forma pauperis (IFP)
in his appeal of the district court’s denial of his Federal Rule of Criminal
Procedure 36 motion. The district court determined that it lacked jurisdiction
to consider the motion because the motion challenged the calculation of Shaver’s
sentence by the Bureau of Prisons (BOP) and thus was properly filed under 28
U.S.C. § 2241 in the Northern District of Texas, where Shaver was incarcerated.
By moving for IFP here, Shaver is challenging the district court’s
certification that his appeal was not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997); Fed. R. App. P. 24(a). Shaver concedes that
his motion disputed the BOP’s calculation of his sentence, but he argues that his
previously filed Section 2241 petition concerning this issue already was denied
and that he now is attempting, pursuant to Rule 36, to conform his judgment to
the district court’s “original intentions” to give him presentence credit for the
time that he served for his Tarrant County convictions. He also requests an
evidentiary hearing on appeal.
As Shaver concedes, his motion in fact challenged the BOP’s calculation
of his sentence, and thus it would properly be filed under Section 2241 in the
district in which he was incarcerated. See Castro v. United States, 540 U.S. 375,
381 (2003); Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). Accordingly, he
has not shown that the district court erred in denying his Rule 36 motion as a
Section 2241 petition over which it lacked jurisdiction. See Zolicoffer v. United
States Dep’t of Justice, 315 F.3d 538, 540-41 (5th Cir. 2003).
In light of the foregoing, Shaver’s IFP motion fails to show error in the
district court’s certification decision and fails to show that he will raise a
nonfrivolous issue on appeal. See Baugh, 117 F.3d at 202; Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983). Therefore, Shaver’s motion for leave to proceed
IFP on appeal is denied and his appeal is dismissed as frivolous. See Baugh, 117
F.3d at 202 & n.24; 5th Cir. R. 42.2. Shaver’s motion for an evidentiary hearing
on appeal is likewise denied.
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Case: 10-50988 Document: 00511455654 Page: 3 Date Filed: 04/25/2011
No. 10-50988
IFP DENIED; APPEAL DISMISSED; ALL OUTSTANDING MOTIONS
DENIED.
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