Case: 10-10952 Document: 00511495116 Page: 1 Date Filed: 06/01/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 1, 2011
No. 10-10952
Summary Calendar Lyle W. Cayce
Clerk
LESTER JON RUSTON,
Petitioner-Appellant
v.
UNITED STATES OF AMERICA,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CV-1804
Before DENNIS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
Lester Jon Ruston, federal civil detainee, # 26834-177, moves for leave to
proceed in forma pauperis (IFP) in this appeal of the denial of his motion to
vacate the judgment filed under Rule 60 of the Federal Rules of Civil Procedure.
By moving to proceed IFP, Ruston is challenging the district court’s certification
that his appeal is not taken in good faith. Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 10-10952
Ruston has not shown that the district court abused its discretion in
denying his Rule 60 motion. See Bailey v. Cain, 609 F.3d 763, 767 (5th Cir.
2010), cert. denied, 131 S. Ct. 931 (2011). Ruston may not reassert his § 2241
claims because his appeal of the denial of his Rule 60 motion does not bring up
the underlying judgment for review. See id. He has not alleged that bribery of
the judge, fabrication of evidence, an unconscionable plan or scheme designed
to improperly influence the court, or fraud occurred during the pendency of the
instant 28 U.S.C. § 2241 petition. See F ED. R. C IV. P. 60(d)(3). To the extent that
he seeks relief under Rule 60(b)(3), the motion was untimely as it was filed more
than one year after the entry of the judgment. See F ED. R. C IV. P. 60(c)(1).
Ruston has not shown that his appeal involves “‘legal points arguable on their
merits (and therefore not frivolous).’” See Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983). Thus, Ruston has not shown that the district court abused its
discretion in denying his motion, whether it was filed under Rule 60(b) or Rule
60(d). See Bailey, 609 F.3d at 767.
Ruston’s appeal is without arguable merit and is therefore frivolous. See
Howard, 707 F.2d at 220. Accordingly, his request for leave to proceed IFP is
denied, and the appeal is dismissed. See 5th Cir. R. 42.2; see also Baugh, 117
F.3d at 202 n.24. Ruston’s motion for summary disposition of the appeal
pursuant to Rule 27 of the Federal Rules of Appellate Procedure is also denied.
We remind Ruston that he may not file in this court any pro se initial
pleading, including a petition for mandamus relief, or any pro se appeal from a
district court order without first receiving the written permission of an active
judge of this court. Thus, before filing any pro se appeal or other pro se action
in this court, Ruston must submit to the clerk of this court a request for
permission to file, which the clerk shall direct to an active judge of the court. In
requesting the required permission, Ruston shall inform the court of the bar
stated in In re Ruston, No. 10-10509 (5th Cir. Oct. 5, 2010), and In re Ruston,
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Case: 10-10952 Document: 00511495116 Page: 3 Date Filed: 06/01/2011
No. 10-10952
10-10638 (5th Cir. Oct. 6, 2010). The bar does not apply to pleadings filed by
counsel on Ruston’s behalf.
MOTIONS DENIED; APPEAL DISMISSED; SANCTION REITERATED.
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