United States v. Dana Alexander , 695 F. App'x 803 ( 2017 )

Case: 16-51017 Document: 00514120535 Page: 1 Date Filed: 08/17/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-51017 FILED
Summary Calendar August 17, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DANA JOHN ALEXANDER,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:06-CR-62-1
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
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-51017 Document: 00514120535 Page: 2 Date Filed: 08/17/2017
No. 16-51017
required to obtain authorization to proceed IFP. See FED. R. APP. 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; 5TH CIR. R.
42.2.
MOTION FOR LEAVE TO PROCEED IFP DENIED; APPEAL
DISMISSED.
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