No. 09-40517 Summary Calendar.United States Court of Appeals, Fifth Circuit.
October 22, 2009.
Traci Lynne Kenner, Assistant U.S. Attorney, U.S. Attorney’s Office, Tyler, TX, John Malcolm Bales, Assistant U.S. Attorney, U.S. Attorney’s Office, Lufkin, TX, for Plaintiff-Appellee.
Michael Joseph Derrow, Beaumont, TX, pro se.
Appeal from the United States District Court for the Eastern District of Texas, USDC No. 9:98-CR-6-9.
Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:[*]
Michael Joseph Derrow, federal prisoner # 03199-286, seeks leave to proceed in forma
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pauperis (IFP) on appeal from the district court’s denial of his motion to correct illegal sentence pursuant t Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Derrow also moves for the appointment of counsel. Derrow previously filed a 28 U.S.C. § 2255
motion, challenging his conviction and sentence for conspiracy to possess with the intent to distribute crack cocaine and possession with the intent to distribute crack cocaine. His § 2255 motion was denied, and his motion for a certificate of appealability was denied by this court.
In order to obtain leave to proceed IFP, Derrow must show that he is a pauper, and he must raise a nonfrivolous issue. See Jackson v. Dallas Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986). Derrow argues that his sentence is unconstitutional under Apprendi his counsel was ineffective in failing to raise the issue on appeal, and the district court erroneously denied his motion. Derrow’s motion filed in the district court was an unauthorized motion which the district court was without jurisdiction to entertain. See United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994). Derrow’s appeal is without arguable merit and is thus frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Accordingly, Derrow’s request for leave to proceed IFP is DENIED. His motion for appointment of counsel is also DENIED, and the appeal is DISMISSED. See 5TH CIR. R. 42.2.