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United States v. Dana Alexander
695 F. App'x 803
| 5th Cir. | 2017
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Case Information

*1 Before OWEN, ELROD, and COSTA, Circuit Judges.

PER CURIAM: [*]

Dana John Alexander, federal prisoner # 56715-180, moves for leave to proceed in forma pauperis (IFP) to appeal the district court’s sealed order partially granting a motion for reduction of sentence pursuant to Federal Rule of Criminal Procedure 35. His IFP motion is a challenge to the district court’s certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Contrary to Alexander’s assertions, because the district court certified that his appeal would not be in good faith, he is *2 Case: 16-51017 Document: 00514120535 Page: 2 Date Filed: 08/17/2017

No. 16-51017

required to obtain authorization to proceed IFP. See F ED . R. A PP . P. 24(a)(3); 28 U.S.C. § 1915(a)(1).

Alexander states that he intends to argue on appeal that the district court should have recused itself from ruling on the Rule 35 motion. Alexander did not move for recusal in the district court, even though the facts supporting his recusal argument—announced in December 2015 when the Fifth Circuit Judicial Council reprimanded the judge—were publically known while the case was pending in district court. His request for recusal on appeal is therefore untimely. See Travelers Ins. Co. v. Liljeberg Enters., Inc. , 38 F.3d 1404, 1410 (5th Cir. 1994) (“[O]ne seeking disqualification must do so at the earliest moment after knowledge of the facts demonstrating the basis for such disqualification.”); United States v. Sanford , 157 F.3d 987, 988–89 (5th Cir. 1998) (same). We thus conclude that Alexander has not shown that he will present a nonfrivolous issue on appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, we deny his motion for leave to proceed IFP and dismiss the appeal as frivolous. See Baugh, 117 F.3d at 202 n.24; 5 TH C IR . R. 42.2.

MOTION FOR LEAVE TO PROCEED IFP DENIED; APPEAL DISMISSED.

2

[*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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.

Case Details

Case Name: United States v. Dana Alexander
Court Name: Court of Appeals for the Fifth Circuit
Date Published: Aug 17, 2017
Citation: 695 F. App'x 803
Docket Number: 16-51017 Summary Calendar
Court Abbreviation: 5th Cir.
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