United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 9, 2006
Charles R. Fulbruge III
Clerk
No. 05-10012
Summary Calendar
JOHN ALBERT ESTRADA, SR.,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CV-371-P
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Before SMITH, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
John Albert Estrada, Sr., Texas prisoner # 744108, seeks a
certificate of appealability (COA) to appeal the district court’s
denial of his FED. R. CIV. P. 60(b) motion to vacate the judgment
in a prior proceeding under 28 U.S.C. § 2254. Estrada’s motion
raised claims not only under Rule 60(b)(3) and (6), but also
under the court’s inherent equitable powers to respond to a fraud
on the court. The district court ruled that Estrada’s Rule 60(b)
motion was essentially a second or successive petition for habeas
*
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this opinion should not be published and is not precedent except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. 05-10012
-2-
corpus relief, which it could not consider unless this court
authorized its filing. The district court also determined that
Estrada’s allegations of fraud did not meet the requirements of
fraud on the court.
A COA may be issued only if Estrada has made a substantial
showing of the denial of a constitutional right. 28 U.S.C
§ 2253(c). To the extent that Estrada raised an equitable claim
in district court, however, he does not need a COA to proceed on
appeal. See Fierro v. Johnson, 197 F.3d 147, 150 (5th Cir.
1999). He does, however, need leave to proceed IFP.
Estrada argues that the Respondent committed a fraud on the
court when he alleged in his brief that Estrada had signed a
judicial confession to aggravated sexual assault, when the state
court record introduced by the Respondent shows that Estrada had
not signed it. The district court determined that the
Respondent’s misstatement did not amount to fraud on the court.
“To establish fraud on the court, it is necessary to show an
unconscionable plan or scheme which is designed to improperly
influence the court in its discretion.” Fierro, 197 F.3d at 154.
Assuming, without deciding, that 28 U.S.C. § 2244(b) has not
foreclosed the use of the courts’ inherent powers to vacate prior
judgments for fraud on the federal courts, Estrada has failed to
demonstrate, by clear and convincing evidence, that the
Respondent perpetrated a fraud on the courts. See Kinnear-Weed
No. 05-10012
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Corp. v. Humble Oil & Refining Co., 441 F.2d 631, 636 (5th Cir.
1971).
To the extent that Estrada’s motion to vacate judgment is
construed as sounding under FED. R. CIV. P. 60(b), his motion for
a COA is DENIED. See Gonzales v. Crosby, 125 S. Ct. 2641, 2647-
48, 2651 (2005). To the extent that Estrada argues that he is
entitled to equitable relief from a fraudulently obtained
judgment, his motion for a COA is DENIED AS UNNECESSARY. See
Fierro v. Johnson, 197 F.3d 147, 150 (5th Cir. 1999).
Estrada also moves for leave to proceed in forma pauperis
(IFP) on appeal. The district court denied his IFP motion,
certifying under 28 U.S.C. § 1915(a)(3) and FED. R. APP. P.
24(a)(3) that Estrada’s appeal was not taken in good faith. We
construe his motion to proceed IFP on appeal as a challenge to
the district court’s certification decision. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). We limit our inquiry
“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 citation
omitted). Estrada’s appeal of the district court’s equitable
ruling does not involve legal points arguable on their merits.
Accordingly, we DENY IFP status and DISMISS Estrada’s appeal as
frivolous. See 5TH CIR. R. 42.2.
No. 05-10012
-4-
COA DENIED AS TO FED. R. CIV. P. 60(b) CLAIMS; COA DENIED AS
UNNECESSARY AS TO EQUITABLE CLAIMS; IFP DENIED; APPEAL DISMISSED
AS FRIVOLOUS