Case: 13-10978 Document: 00512715636 Page: 1 Date Filed: 07/29/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-10978 FILED
Summary Calendar
July 29, 2014
Lyle W. Cayce
Clerk
MARCUS DWAYNE MAYBERRY,
Petitioner-Appellant
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:97-CV-2592
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
Marcus Dwayne Mayberry, Texas prisoner # 605575, filed a motion in
the district court pursuant to Federal Rule of Civil Procedure 60(b) challenging
this court’s dismissal of his appeal in Mayberry v. Thaler, No. 13-10077. The
district court denied his motion, finding that his appeal was still pending.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10978 Document: 00512715636 Page: 2 Date Filed: 07/29/2014
No. 13-10978
Mayberry is correct that, at the time of the district court’s ruling, his
appeal in No. 13-10077 had already been dismissed. Nevertheless, Mayberry’s
motion, which was filed in his closed 28 U.S.C. § 2254 proceeding and which
challenged an order of this court, was a “meaningless, unauthorized motion”
over which the district court had no jurisdiction. See United States v. Early,
27 F.3d 140, 142 (5th Cir. 1994). As the district court was without jurisdiction
to rule on the motion, we do not address Mayberry’s argument that the failure
to reinstate his appeal violates his due process rights. The district court’s
denial of his motion is AFFIRMED.
In Mayberry v. Stephens, No. 12-11226 (5th Cir. Feb. 20, 2014), we
warned Mayberry that he could face sanctions if he continued to file repetitious
and frivolous filings requesting free copies of court records. Our warning in
this appeal is broader as we now WARN Mayberry that if he files any further
frivolous filing, he could face sanctions, including dismissal, monetary
sanctions, or restrictions on his ability to file pleadings in this court or any
court subject to this court’s jurisdiction.
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