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Jose Cardenas-Lira v. Clay Odom ( 2020 )


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  •      Case: 19-40508      Document: 00515493605         Page: 1    Date Filed: 07/17/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-40508                              FILED
July 17, 2020
Lyle W. Cayce
JOSE FERNANDO CARDENAS-LIRA,                                                    Clerk
Plaintiff-Appellant
v.
CLAY ODOM; HUGO MARTINEZ,
Defendants-Appellees
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 2:18-CV-184
Before CLEMENT, ELROD, and HAYNES, Circuit Judges.
PER CURIAM: *
Jose Fernando Cardenas-Lira, federal prisoner # 82905-379, is serving
an 84-month sentence for possession of child pornography. Raising claims
challenging his conviction, Cardenas-Lira filed the instant civil rights action
against Special Agent Clay Odom of Homeland Security Investigations and
Assistant United States Attorney Hugo R. Martinez. Cardenas-Lira asserted
that they conspired against him and engaged in malicious prosecution,
prosecutorial misconduct, abuse of process, and obstruction of justice by
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40508     Document: 00515493605     Page: 2   Date Filed: 07/17/2020
No. 19-40508
improperly obtaining a search warrant and an arrest warrant based on conduct
that was not illegal, planting evidence, and committing perjury. Because no
court had reversed or otherwise invalidated Cardenas-Lira’s conviction, the
district court dismissed as frivolous the complaint pursuant to Heck v.
Humphrey,
    512 U.S. 477
    , 486-87 (1994). The district court imposed monetary
sanctions, and barred Cardenas-Lira from filing any civil actions in the district
court without first paying the sanction and obtaining the court’s permission,
based on his history of filing abusive and duplicative pleadings.
By moving to appeal in forma pauperis (IFP), Cardenas-Lira challenges
the district court’s certification that his appeal is not in good faith. See Baugh
v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997). His IFP request “must be directed
solely to the trial court’s reasons for the certification decision,”
    id., and our 
    inquiry “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). We may dismiss the appeal if it is apparent
that it would be meritless.
    Baugh, 117 F.3d at 202 
    & n.24; see 5TH CIR. R. 42.2.
Cardenas-Lira offers only a bare recitation of his claims and procedural
history of his case and related cases; he does not challenge the district court’s
determination that his claims were barred by Heck. By failing to address any
of the district court’s reasons for dismissal and certification, he has abandoned
any issue crucial to his appeal and IFP motion. See Yohey v. Collins,
    985 F.2d 222
    , 224-25 (5th Cir. 1993); see also Brinkmann v. Dallas County Deputy
Sheriff Abner,
    813 F.2d 744
    , 748 (5th Cir. 1987). In addition, Cardenas-Lira
has not established that the district court abused its broad discretion in
imposing sanctions. See Mendoza v. Lynaugh,
    989 F.2d 191
    , 196 (5th Cir.
1993); Topalian v. Ehrman,
    3 F.3d 931
    , 934 (5th Cir. 1993).
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Case: 19-40508    Document: 00515493605      Page: 3   Date Filed: 07/17/2020
No. 19-40508
Because Cardenas-Lira fails to show that his appeal involves any
nonfrivolous issue, his IFP motion is DENIED, and this appeal is DISMISSED
AS FRIVOLOUS. See
    Howard, 707 F.2d at 220
    ;
    Baugh, 117 F.3d at 202 
    & n.24; 5TH CIR. R. 42.2.
The district court’s dismissal of Cardenas-Lira’s civil rights complaint as
frivolous and our dismissal of this appeal as frivolous both count as 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
    , 388 (5th Cir. 1996),
abrogated in part on other grounds by
    Coleman, 135 S. Ct. at 1762-63
    .
Cardenas-Lira is warned that if he accumulates three strikes, 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).
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