IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 24, 2009
No. 08-60976
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HAROLD DAMPER,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:98-CR-5-1
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Harold Damper, federal prisoner # 14313-112, seeks permission to proceed
in forma pauperis (IFP) to appeal the district court’s denial of his motion to
disqualify Judge Keith Starrett pursuant to 28 U.S.C. § 455. Damper contends
that Judge Starrett abused his discretion in not immediately recusing himself
because he “was assigned a case wherein his first cousin, while acting as an
attorney for the Government, illegally destroyed evidence prior to what should
have been a mandatory evidentiary hearing.” Damper asserts that in addition
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60976
to recusing himself, Judge Starrett should have reported Assistant United States
Attorney (AUSA) Richard T. Starrett’s unethical actions. Furthermore, Damper
argues that Judge Starrett failed to hold an evidentiary hearing regarding his
§ 2255 motion because Judge Starrett was aware of his cousin’s unethical
behavior. Damper further contends that he was entitled to a new sentencing
hearing following Judge Starrett’s decision to vacate his previous eight-year
term of supervised release and reduce it to a six-year term. By moving for leave
to proceed IFP, Damper is challenging the district court’s certification that his
appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997).
Damper fails to set forth any facts that would lead a reasonably objective
person to doubt the impartiality of the district court judge. See § 455(a), (b);
Andrade v. Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003). Damper’s argument
that Judge Starrett should have recused himself because he was aware that
AUSA Starrett destroyed evidence, and as such he was denied an evidentiary
hearing on his § 2255 motion was not raised by Damper in his motion for
disqualification before the district court. In his briefs, Damper fails to challenge
the district court’s reasoning for denying his motion for disqualification. He does
not challenge Judge Starrett’s determination that there was no appearance of
impropriety resulting from Judge Starrett’s handling of Damper’s case since the
case was reassigned from AUSA Starrett to another AUSA before Judge Starrett
was assigned the case from Judge Charles W. Pickering. Damper also does not
challenge the district court’s determination that disqualification was not
required under § 455(b)(5) because, although Judge Starrett and AUSA Starrett
are first cousins, their relation is not “a person within the third degree of
relationship.”
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 that issue.
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
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No. 08-60976
1987). Although pro se briefs are afforded liberal construction, Haines v. Kerner,
404 U.S. 519, 520 (1972), even pro se litigants must brief arguments in order to
preserve them. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Therefore, Damper has abandoned any challenge to the district court’s
certification decision by failing to raise the issues in his motion or brief. See
Brinkmann, 813 F.2d at 748.
In any event, Damper’s assertion that AUSA Starrett unethically
destroyed evidence is not supported by the record. The evidence Damper is
referring to in his brief is the crack cocaine that was seized as evidence in his
case. On August 27, 2002, Judge Pickering granted the Government’s request
to destroy the crack cocaine, which was in the custody of the FBI, since Damper’s
case had concluded. As the Government argues in its brief, the destruction of
evidence following the conclusion of a case is routine. Furthermore, other than
conclusory assertions, Damper has not shown any bad faith on the part of the
Government in destroying the crack cocaine. Cf. United States v. Gibson, 963
F.2d 708, 711 (5th Cir. 1992).
To the extent Damper challenges the district court’s decision regarding his
28 U.S. C. § 2255 motion, such a claim would be unreviewable since this court
has previously denied a certificate of appealability regarding Damper’s § 2255
motion, and he has not sought permission to file a successive § 2255 in the
district court. See § 2255(h). Accordingly, Damper’s request for leave to proceed
IFP is denied and his appeal is dismissed as frivolous. See Baugh, 117 F.3d at
202 n.24; 5 TH C IR. R. 42.2.
IFP DENIED; APPEAL DISMISSED.
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