IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60532
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH HAROLD GRAVES, also known as Joe Diamond,
also known as Cowboy,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:98-CV-214
(1:98-CV-214)
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January 15, 2001
Before JOLLY, WIENER, and PARKER, Circuit Judges.
PER CURIAM:*
Joseph Harold Graves, federal inmate #11851-018, moves this
court for leave to proceed in forma pauperis (IFP) on appeal from
the denial of his 28 U.S.C. § 2255 motion. “To proceed on appeal
[IFP], a litigant must be economically eligible, and his appeal
must not be frivolous.” Jackson v. Dallas Police Dep’t, 811 F.2d
260, 261 (5th Cir. 1986). Although Graves is economically
eligible, he fails to present this court with an appellate issue
of arguable merit.
*
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that this opinion should not be published and is not precedent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. 00-60532
-2-
Graves fails to raise an argument concerning the merits of
any of his claims presented in the district court. Thus, any
such argument is deemed abandoned on appeal. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Graves argues that the district court violated procedural
rules and due process by taking twenty-six months and six days to
decide Graves’ § 2255 motion. Section 2255 does not state a
period within which the district court must decide the motion.
Cf. 28 U.S.C. § 2244(b)(3)(D) (court of appeals has 30 days in
which to consider motion for authorization to file successive
§ 2254 application). Although Rule 4(b) of the Rules Governing
Section 2255 Proceedings for the U.S. District Courts directs the
district court to examine the 28 U.S.C. § 2255 motion promptly, a
district court has discretion in controlling its docket. See
Marinechance Shipping, Ltd. v. Sebastian, 143 F.3d 216, 218 (5th
Cir.), cert. denied, 525 U.S. 1055 (1998); Topalian v. Ehrman,
954 F.2d 1125, 1139 (5th Cir. 1992); In re Ramu Corp., 903 F.2d
312, 318 (5th Cir. 1990).
Graves misunderstands this court’s mandamus orders. We gave
Graves the opportunity to renew his mandamus petition if the
district court had not determined the pending 28 U.S.C. § 2255
motion within sixty days from our order. See In re Graves, No.
00-60165 (5th Cir. June 14, 2000); In re Graves, No. 98-00462
(5th Cir. Apr. 7, 1999). Within thirty days from the denial of
Graves’ second mandamus petition, the district court issued its
twenty-seven-page memorandum order and denied 28 U.S.C. § 2255
relief. Graves fails to challenge the district court’s analysis
No. 00-60532
-3-
on any of his 28 U.S.C. § 2255 claims. Nor does he assert that
he was prejudiced by the length of time leading to the court’s
ruling except to contend that the court determined the matter
without requiring a response from the Government or allowing
Graves an opportunity to file a rebuttal. Rule 4(b) permits a
district court to dismiss summarily a § 2255 motion “[i]f it
plainly appears from the face of the motion and any annexed
exhibits and the prior proceedings in the case that the movant is
not entitled to relief.”
The twenty-six-month period that elapsed before the district
court ruled on Graves’ § 2255 motion does not amount to an abuse
of the court’s discretion. The § 2255 proceeding was not
rendered fundamentally unfair, and thus, due process was not
infringed.
For the first time on appeal, Graves challenges his
conviction and sentence premised on Apprendi v. New Jersey, 120
S. Ct. 2348, 2362-63 (2000), and Jones v. United States, 526 U.S.
227, 243 n.6 (1999). Issues raised for the first time on appeal
of a 28 U.S.C. § 2255 motion are not considered. United States
v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998). A defendant
seeking to raise a new 28 U.S.C. § 2255 claim would need this
court’s authorization to file a successive 28 U.S.C. § 2255
motion in the district. See United States v. Orozco-Ramirez, 211
F.3d 862, 864-65 (5th Cir. 2000). An Apprendi claim does not
meet the standards warranting this court’s authorization to file
a successive § 2255 motion. See In re Tatum, ___ F.3d ___ (5th
Cir. Nov. 15, 2000), 2000 WL 1707765 at *1-*2.
No. 00-60532
-4-
Because Graves’ argument concerning a conflict of interest
by the U.S. Attorney and an Assistant U.S. Attorney is raised for
the first time in his reply brief, we need not address it. See
United States v. Prince 868 F.2d 1379, 1386 (5th Cir. 1989).
The issues presented by Graves are not arguable on their
merits. See Jackson, 811 F.2d at 261. IT IS ORDERED that IFP is
DENIED. This appeal is frivolous and therefore is DISMISSED.
See 5TH CIR. R. 42.2.
IFP DENIED. APPEAL DISMISSED.