IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 13, 2007
No. 06-51423
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MIGUEL ANGEL JAIMES-JURADO
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:00-CR-37-ALL
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Miguel Angel Jaimes-Jurado, federal prisoner # 04105-180, has filed a
motion for leave to proceed in forma pauperis (IFP) on appeal of the dismissal
of his FED. R. CIV. P. 60(b)(6) motion. Jaimes-Jurado’s motion sought leave to
reinstate the appeal of his sentence to concurrent terms of 240 months of
imprisonment, which was imposed after pleading guilty to one count of illegally
reentering the United States after having been deported in violation of 8 U.S.C.
§ 1326, and to one count of conspiracy to possess with intent to distribute cocaine
*
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should not be published and is not precedent except under the limited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. 06-51423
and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. In the
alternative, Jaimes-Jurado asked the district court to characterize his original
notice of appeal as a timely 28 U.S.C. § 2255 motion and to reinstate that
proceeding.
The district court determined that it lacked authority to reinstate Jaimes-
Jurado’s criminal appeal under Rule 60(b)(6) because the Federal Rules of Civil
Procedure do not apply to criminal cases. The district court also refused to
construe Jaimes-Jurado’s notice of appeal as a timely § 2255 motion. The
district court denied Jaimes-Jurado’s motion to appeal IFP and certified that the
appeal was not taken in good faith under 28 U.S.C. § 1915(a)(3) and FED. R. APP.
P. 24(a).
By moving for IFP, Jaimes-Jurado is challenging the district court’s
certification. See Baugh v. Taylor, 117 F.3d 197, 202-03 (5th Cir. 1997). Our
inquiry into whether the appeal is taken in good faith “is limited 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). Probable success on the merits is not
required. Id.
Jaimes-Jurado indicates that he would appeal the district court’s denial
of his Rule 60(b)(6) motion on the basis that his sentence was an unlawful
upward departure not covered by the appeal waiver included in his plea
agreement. He also complains that his attorney did not withdraw properly from
the case before his appeal was dismissed for want of prosecution. These
arguments do not address the basis of the district court’s denial of his Rule
60(b)(6) motion, but are directed to the merits of his underlying claims. We
cannot review the underlying merits of a case on the appeal of the denial of a
Rule 60(b) motion; review is limited to the grounds for the denial of the Rule
60(b) motion itself. Bailey v. Ryan Stevedoring Co., 894 F.2d 157, 159 (5th Cir.
1990).
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No. 06-51423
In addition, the district court’s denial of Jaimes-Jurado’s Rule 60(b)(6)
motion, which would be reviewed for abuse of discretion, was sound. See
Warfield v. Byron, 436 F.3d 551, 555 (5th Cir. 2006). The district court properly
reasoned that it lacked authority to reinstate Jaimes-Jurado’s criminal appeal
under Rule 60(b) because the Federal Rules of Civil Procedure do not apply to
criminal cases. United States v. O’Keefe, 169 F.3d 281, 289 (5th Cir. 1999). The
district court did not abuse its discretion in refusing to construe his prior notice
of appeal as a timely § 2255 motion because Jaimes-Jurado failed to identify any
“extraordinary circumstances” justifying Rule 60(b)(6) relief. Batts v. Tow-Motor
Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995).
Jaimes-Jurado’s appeal of the district court’s denial of his Rule 60(b)(6)
motion is not taken in good faith and is therefore frivolous. See Baugh, 117 F.3d
at 202 & n.24; Howard, 707 F.2d at 220. Accordingly, his motion to proceed IFP
on appeal is denied and the appeal is dismissed. 5TH CIR. R. 42.2; Howard, 707
F.2d at 219-20.
IFP DENIED; APPEAL DISMISSED.
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