United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 14, 2005
Charles R. Fulbruge III
Clerk
No. 04-51124
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLARANCE CALLIES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:03-CV-1149
USDC No. 5:01-CR-4-ALL
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Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Clarance Callies, federal inmate # 13001-180, appeals the
denial of a postjudgment motion in his proceeding brought under
28 U.S.C. § 2255. He also moves for leave to proceed in forma
pauperis on appeal. Callies is serving a 240-month sentence for
two counts of trafficking in cocaine base.
Callies makes several arguments pertaining to his drug-
trafficking conviction and the denial of his 28 U.S.C. § 2255
motion. To the extent that his postconviction motion attacks the
*
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this opinion should not be published and is not precedent except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. 04-51124
-2-
order denying the prior 28 U.S.C. § 2255 motion, it is a motion
for relief from judgment under FED. R. CIV. P. 60(b). See Harcon
Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 669-70 (5th
Cir. 1986). An appeal from the denial of the FED. R. CIV. P.
60(b) motion does not bring the underlying judgment up for
appellate review. See Dunn v. Cockrell, 302 F.3d 491, 492 (5th
Cir. 2002); Edwards v. City of Houston, 78 F.3d 983, 995 (5th
Cir. 1996) (en banc). To the extent that he attacks his
underlying conviction, his motion is a successive and
unauthorized 28 U.S.C. § 2255 motion. See Dunn, 302 F.3d at 492
n.1; Hess v. Cockrell, 281 F.3d 212, 214 (5th Cir. 2002).
No matter how the postconviction motion is construed, the
appeal of its dismissal lacks any arguable merit in fact or law
and is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th
Cir. 1983). The appeal is therefore DISMISSED. 5TH CIR. R. 42.2.
Because Callies identifies no nonfrivolous issue for appeal,
he is not entitled to proceed in forma pauperis (“IFP”), and his
motion to proceed IFP is DENIED. See Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997).
Callies is WARNED that further frivolous filings will result
in the imposition of sanctions.
Callies has filed a motion for release on bail; this motion
is DENIED.
APPEAL DISMISSED; SANCTION WARNING ISSUED; ALL MOTIONS
DENIED.