Gery Scott v. Lorie Davis, Director , 670 F. App'x 322 ( 2016 )

Case: 16-10136 Document: 00513755887 Page: 1 Date Filed: 11/10/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-10136 FILED
Summary Calendar November 10, 2016
Lyle W. Cayce
Clerk
GERY LEE SCOTT,
Petitioner-Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CV-20
Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Gery Lee Scott, Texas prisoner # 1123905, seeks leave to proceed in
forma pauperis (IFP) to appeal the district court’s transfer of his 28 U.S.C.
§ 2254 application as successive and unauthorized. Scott was convicted of
injury to a child-bodily injury and sentenced to 35 years of imprisonment. He
raised claims challenging his conviction and sentence on the basis of an
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10136 Document: 00513755887 Page: 2 Date Filed: 11/10/2016
No. 16-10136
allegedly unlawful sentence enhancement as well as the state and federal
postconviction proceedings.
This appeal is frivolous and without merit because the district court
correctly determined that the § 2254 application was successive and
unauthorized under 28 U.S.C. § 2244(b)(3)(A). See § 2254(a); Leal Garcia v.
Quarterman, 573 F.3d 214, 222 (5th Cir. 2009); Moore v. Dretke, 369 F.3d 844,
846 (5th Cir. 2004). Accordingly, Scott’s motions for IFP and appointment of
counsel are DENIED, and his appeal is DISMISSED as frivolous. See 5TH CIR.
R. 42.2; FED. R. APP. P. 24(a)(5); Carson v. Polley, 689 F.2d 562, 586 (5th Cir.
1982).
This is Scott’s third unsuccessful attempt to challenge his conviction and
sentence. He is WARNED that future frivolous or repetitive filings will result
in the imposition of sanctions.
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