Case: 16-41666 Document: 00514200925 Page: 1 Date Filed: 10/18/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-41666 FILED
October 18, 2017
Lyle W. Cayce
ABRAHAM CAMPOS, Clerk
Plaintiff-Appellant
v.
JERILYNN YENNE, District Attorney for Brazoria County, Texas,
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:15-CV-284
Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
Abraham Campos, Texas prisoner # 721237, moves this court for
authorization to proceed in forma pauperis (IFP) following the district court’s
dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for failure to state
a claim upon which relief may be granted under 28 U.S.C. § 1915(e)(2)(B).
Campos argues that he stated a claim for a denial of due process based on the
State’s refusal to release evidence for DNA testing. Campos has failed to show
that he should be allowed to proceed IFP on appeal under 28 U.S.C. § 1915(b)
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-41666 Document: 00514200925 Page: 2 Date Filed: 10/18/2017
No. 16-41666
or that his appeal of the district court’s judgment presents a nonfrivolous issue.
See Skinner v. Switzer, 562 U.S. 521, 534 (2011); Dist. Att’ys Office for Third
Jud. Dist. v. Osborne, 557 U.S. 52, 67-68 (2009); Carson v. Polley, 689 F.2d 562,
586 (5th Cir. 1982).
Even if DNA testing would show that Campos’s blood was not found on
any of the listed evidence, such evidence would not be sufficient to overcome
the evidence presented against him at trial. The testimony at trial was clear
that Campos was not bleeding when he was arrested on the night of the
murder. After detailing the evidence against Campos, the district court stated
that the DNA evidence in question would not have cast any doubt on that
evidence and would have corroborated the testimony that Campos was not
bleeding at the time of his arrest. Campos has produced nothing to contradict
this conclusion. Campos’s motion for leave to proceed IFP therefore is
DENIED.
The facts surrounding the IFP decision are inextricably intertwined with
the merits of the appeal. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th
Cir. 1997). The appeal presents no nonfrivolous issues and is DISMISSED AS
FRIVOLOUS. 5TH CIR. R. 42.2.
The district court’s dismissal and the dismissal of this appeal count as
two strikes for purposes of 28 U.S.C. § 1915(g). See Coleman v. Tollefson,
135 S. Ct. 1759, 1763-64 (2015); Adepegba v. Hammons, 103 F.3d 383, 387-88
(5th Cir. 1996). We caution Campos that if he accumulates three strikes under
§ 1915(g), he will not be able to proceed IFP in any civil action or appeal filed
while he is incarcerated or detained in any facility unless he is under imminent
danger of serious physical injury. See § 1915(g).
IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.
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