Case: 20-20014 Document: 00515807734 Page: 1 Date Filed: 04/05/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 5, 2021
No. 20-20014
Summary Calendar Lyle W. Cayce
Clerk
Rudolph Resendez, Jr.,
Plaintiff—Appellant,
versus
United States; Gregg Abbott, Governor of Texas; Lorie
Davis,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-4150
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Plaintiff-Appellant Rudolph Resendez, Jr., Texas prisoner # 869768,
appeals the district court’s dismissal of his 42 U.S.C. § 1983 action. In his
complaint, he essentially claimed that his Texas conviction and sentence for
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-20014 Document: 00515807734 Page: 2 Date Filed: 04/05/2021
No. 20-20014
aggravated sexual assault of a child were null and void and that his
imprisonment constitutes an unlawful kidnapping. He averred, among other
things, that (1) his conviction was actually against a different individual and
that he is serving that person’s life sentence, and (2) his conviction was the
result of a broad-based conspiracy among state and federal governments,
lawyers, judges, prison officials, prosecutors, and other persons involved in
his underlying criminal case to cover up misconduct. As relief, he sought to
be released from prison and awarded $1 billion in damages.
To the extent that Resendez’s claims constituted challenges to his
conviction, the district court found that they were unauthorized, successive
claims over which the court lacked jurisdiction. Resendez fails to challenge
the district court’s dismissal of these claims as unauthorized and successive.
Pro se briefs are afforded liberal construction. See Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993). Nevertheless, when an appellant fails to identify
any error in the district court’s analysis, it is the same as if the appellant had
not appealed the decision. Brinkmann v. Dallas Cnty. Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987). Resendez has failed to challenge the
district court’s findings in this regard, so he has abandoned that issue. See id.
The district court dismissed Resendez’s § 1983 claims on the ground
that they were malicious when they arose out of the same series of events that
were the subject of prior § 1983 lawsuits. An action may be dismissed as
malicious and frivolous if it duplicates claims raised by the same plaintiff in
previous or pending litigation. Pittman v. Moore, 980 F.2d 994, 994-95 (5th
Cir. 1993); Wilson v. Lynaugh, 878 F.2d 846, 850 (5th Cir. 1989). Resendez
has not shown that the district court erred in dismissing his § 1983 claims as
duplicative and malicious. See Pittman, 980 F.2d at 994-95; see also Resendez
v. Texas, 440 F. App’x 305, 306 (5th Cir. 2011); Resendez v. United States, 96
Fed. Cl. 283, 287 (Fed. Cl. 2010); Resendez v. Smith, No. 1:05-CV-759, 2007
WL 869565, 1 (E.D. Tex. Mar. 21, 2007); Resendez v. White, No. H-06-1435,
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No. 20-20014
2006 WL 6934005, 1 (S.D. Tex. May 23, 2006), aff’d sub nom., Resendez
v. City of Houston, 258 F. App’x 635 (5th Cir. 2007). We therefore do not
reach Resendez’s challenge to the district court’s alternative dismissal of his
claims based on Heck v. Humphrey, 512 U.S. 477 (1994).
Neither does Resendez’s contention that the district court lacked
jurisdiction to reinstate his case because he had filed a notice of appeal have
any merit. The district court properly construed Resendez’s notice as a
timely filed motion under Federal Rule of Civil Procedure 59(e). See Fed.
R. App. P. 4(a)(4)(A)(iv), (B)(i); Ross v. Marshall, 426 F.3d 745, 751-52 (5th
Cir. 2005); Burt v. Ware, 14 F.3d 256, 260-61 (5th Cir. 1994).
Finally, to the extent that Resendez seeks authorization to file a
successive 28 U.S.C. § 2254 application, he has failed to make the required
showing. See 28 U.S.C. § 2244(b)(2), (b)(3)(C). To the extent that he raises
a stand-alone claim of actual innocence, this court “does not
recognize freestanding claims of actual innocence on federal habeas review.”
In re Swearingen, 556 F.3d 344, 348 (5th Cir. 2009). Insofar as Resendez
contends “actual innocence” is a gateway to raise successive claims, he has
not presented any new evidence showing that it is more likely than not that
no reasonable juror would have found him guilty of the charged offense. See
McQuiggin v. Perkins, 569 U.S. 383, 386, 399 (2013); Schlup v. Delo, 513 U.S.
298, 327-29 (1995).
AFFIRMED.
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