United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 21, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-11008
Conference Calendar
LESTER JON RUSTON
Petitioner-Appellant
v.
ALBERTO R GONZALES, U S ATTORNEY GENERAL
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:06-CV-1350
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Lester Jon Ruston, federal prisoner # 26834-177, moves this court for leave
to proceed in forma pauperis (IFP) on appeal following the dismissal without
prejudice of his 28 U.S.C. § 2241 petition. Ruston’s motion is construed as a
challenge to the district court’s determination that the appeal is not taken in
good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). This court’s
inquiry into whether the appeal is taken in good faith “is limited to whether 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should not be published and is not precedent except under the limited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. 06-11008
appeal involves ‘legal points arguable on their merits (and therefore not
frivolous).’” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (citation omitted).
If the appeal is frivolous, this court may dismiss it sua sponte under 5TH CIR.
R. 42.2. Baugh, 117 F.3d at 202 n.24.
Ruston has not shown that the district court erred in dismissing his § 2241
petition without prejudice. Ruston is not entitled to habeas relief based on
conclusional allegations that it is not possible to raise his claims in the pending
criminal case due to fraud and judicial and prosecutorial misconduct. See Koch
v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990). Ruston’s request for IFP status is
denied, and his appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202
& n.24; 5TH CIR. R. 42.2. Ruston’s motions for production, for contempt of court,
for judicial notice, and to disqualify the judges of this court are also denied.
IFP DENIED; MOTIONS DENIED; APPEAL DISMISSED.
2