Gery Scott v. Lorie Davis, Director, No. 16-10136 (5th Cir. 2016)

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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 Summary Calendar FILED 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 2