# United States Court **of Appeals**  **f or the Fifth Circuit** 

**No. 20**

**- 40508** 
**consolidated with No. 20** 

**- 40702** 

**Marcos Ortiz,**

Petitioner

— Appellant **,**

versus
**Bobby Lumpkin,** Director , Texas Department of Criminal Justice , Correctional Institutions Division **,** Respondent

— Appellee

**.**

Appeal s from the United States District Court for the Southern District of Texas USDC No. 3:04

- CV

- 354

Before **Elrod, Oldham,** and **Wilson,** Circuit Judges

**. Per Curiam**  **:** * Marcos Lopez Ortiz, Texas prisoner # 1049113 , has two consolidate d appeals pending before us, No. 20

- 40508 and No. 20

- 40702

. In the first appeal, the district court denied two nunc pro tunc motions that sought to have

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED January 28, 2022

Lyle W. Ca yce Clerk Case: 20-40508 Document: 00516184387 Page: 1 Date Filed: 01/28/2022No. 20

- 40508 c/w No. 20

- 40702

2 a new judge rule on Ortiz’s 28 U.S.C. § 2254 habeas application on the ground that they were legally unsupported, denied Ortiz leave to proceed in forma pauperis ( IFP) , and certified that an appeal would not be taken in good faith. In the second appeal, the district court imposed sanctions, denied Ortiz leave to proceed IFP, and certified that an appeal would not be taken in good faith. Ortiz moves this court for leave to pr oceed IFP in both appeals

. By seeking leave to proceed IFP, Ortiz is challenging the district court’s certifications that his appeals are not taken in good faith. See Baugh v. Taylor , 117 F.3d 197, 202 (5th Cir. 1997). To obtain leave, Ortiz must show that he is financially eligible and that he will present a nonfrivolous issue for
appea l

. See Carson v. Polley , 689 F.2d 562, 586 (5th Cir. 1982). I f an appeal is frivolous, this court may dismiss it sua sponte

. **5th Cir. R.** 42.2.

In appe al No. 20

- 40508, Ortiz seeks a certificate of appealability (COA) to challenge the district court’s denial of the two nunc pro tunc motions

. Because the motions were not authorized by rule or statute and could not provide the relief sought therein, we **DEN Y**  a COA as unnecessary to appeal them. 28 U.S.C. § 2253(c)(1); see Romero

- Rodriguez v. G onzales , 488 F.3d 672, 677

– 79 (5th Cir. 2007) ; United States v. Early , 27 F.3d 140,
141

– 42 (5th Cir. 1994)

. Rather than remand, we **DISMISS** Ortiz’s appeal from the denial of the motions as frivolous

. See Early , 27 F.3d at 141

- 42. In light of Ortiz’s failure to identify a nonfrivolous issue to raise in this appeal, his motion for leave to proceed IFP in this appeal also is **DENIED**

. See Baugh , 117 F. 3d at 202 & n.24; Howard v. King , 707 F.2d 215, 220 (5th Cir. 1983); **5th Cir. R.** 42.2

. In appeal No. 20

- 40702, Ortiz fails to address the district court’s imposition of sanctions . Accordingly, he has waived review of that issue and fails to present a nonfrivolous issue for this court’s review. See Hughes v. Johnson , 191 F.3d 607, 613 (5th Cir. 1999 ) ; Baugh , 117 F.3d at 202; Howard , Case: 20-40508 Document: 00516184387 Page: 2 Date Filed: 01/28/2022No. 20

- 40508 c/w No. 20

- 40702

3 707 F.2d at 220. Accordingly, we **DENY** Ortiz le ave to proceed IFP in this appeal and **DISMISS** the appeal as frivolous. See Baugh , 117 F.3d at 202 & n.24; **5th Cir. R.** 42.2. Case: 20-40508 Document: 00516184387 Page: 3 Date Filed: 01/28/2022