IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 30, 2009
No. 09-10391
Summary Calendar Charles R. Fulbruge III
Clerk
WAI LEUNG CHU,
Petitioner-Appellant
v.
UNITED STATES OF AMERICA,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:09-MC-10
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Wai Leung Chu, federal prisoner # 20645-122, seeks to proceed in forma
pauperis (IFP) on appeal from the denial of his motion to produce. In his motion,
Chu contended that because he was “a person held in custody for violating
probation or supervised release,” F ED. R. C RIM. P. 32.1(a)(1) required that he be
brought before a magistrate judge for an initial appearance hearing.
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 09-10391
Chu’s IFP 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). 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) (citation omitted). If the appeal is frivolous, we may dismiss it
sua sponte under 5 TH C IR. R. 42.2. See Baugh, 117 F.3d at 202 n.24.
Rule 32.1(a)(1) provides that “[a] person held in custody for violating
probation or supervised release must be taken without unnecessary delay before
a magistrate judge.” Chu was not entitled to a Rule 32.1 initial appearance
hearing because Chu is not in federal custody because he violated the terms of
his supervised release. See Rule 32.1(a)(1). Rather, he is in federal custody
pursuant to his federal convictions for smuggling and trafficking. The plain
language of Rule 32.1(a)(1) requires that the person be “in custody for violating
probation or supervised release.”
Chu has not demonstrated that he will raise a nonfrivolous issue on
appeal. See Howard, 707 F.2d at 219-20. Accordingly, Chu’s motion to proceed
IFP is denied. See Baugh, 117 F.3d at 202 n.24. Because his appeal is frivolous,
see Howard, 707 F.2d at 219-20, the appeal is dismissed. See 5 TH C IR. R. 42.2.
IFP DENIED; APPEAL DISMISSED.
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