Case: 13-11114 Document: 00512621912 Page: 1 Date Filed: 05/07/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-11114
United States Court of Appeals
Fifth Circuit
FILED
MELVIN WIAND, May 7, 2014
Lyle W. Cayce
Plaintiff-Appellant Clerk
v.
UNITED STATES OF AMERICA,
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CV-1433
Before JONES, CLEMENT and PRADO, Circuit Judges.
PER CURIAM: *
Melvin Wiand, federal prisoner # 37221-177, has applied for leave to
appeal in forma pauperis (IFP) from the district court’s judgment granting the
Government’s motion to dismiss and/or for summary judgment and dismissing
Wiand’s civil action seeking return of property forfeited to the Government
pursuant to the terms of his plea agreement. We construe Wiand’s motion as
a challenge to the district court’s determination that his appeal has not been
brought in good faith. See 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-11114
Our inquiry “is limited to whether the appeal involves legal points arguable on
their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983) (internal quotation marks and citations omitted).
The district court erred, Wiand contends, in referring the case to the
magistrate judge, in failing to give adequate reasons for adopting the
magistrate judge’s findings and conclusions, and in denying his request for
leave to proceed IFP on appeal; he complains also that the magistrate judge
was unfairly biased. These contentions are without merit. See 28 U.S.C.
§ 636(b); Liteky v. United States, 510 U.S. 540, 555 (1994).
Wiand asserts that his property was seized in violation of his
constitutional rights and that the disposal of his property undermined his
defense. He was not complaining below of the illegality of the forfeiture, he
contends, but of the illegality of the initial seizure. Because these contentions
go to the legality of his conviction, it is apparent that Wiand is attempting to
circumvent the statutory bar on successive 28 U.S.C. § 2255 motions. See
United States v. Wiand, 535 F. App’x 332 (5th Cir.) (affirming dismissal of
unauthorized and successive § 2255 motion asserting claims related to legality
of suppression hearing because district court lacked jurisdiction), cert. denied,
134 S. Ct. 667 (2013).
Wiand raises no argument with respect to the magistrate judge’s reliance
on Solis v. Pruit, No. 99-40327, 2000 WL 423389, at 1 (5th Cir. Apr. 4, 2000)
(unpublished), or with respect to the magistrate judge’s determination that
Wiand had waived the right to challenge the legality of the forfeiture
proceedings in pleading guilty. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993) (unbriefed issues are waived).
IT IS ORDERED that leave to appeal IFP is DENIED because Wiand
has failed to show that he will raise a nonfrivolous issue. The appeal is
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No. 13-11114
DISMISSED AS FRIVOLOUS. See Baugh, 117 F.3d at 202 & n.24; see also
5TH CIR. R. 42.2. The dismissal of this appeal as frivolous counts as a strike
for purposes of 28 U.S.C. §1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387-88 (5th Cir. 1996). We CAUTION Wiand that if he accumulates three
strikes under § 1915(g) he will not be allowed to proceed IFP in any civil action
or appeal filed while he is incarcerated or detained in any facility unless he is
under imminent danger of serious physical injury. See § 1915(g).
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