United States Court of Appeals

for 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.

Appeals 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 consolidated

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 Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 28, 2022

Lyle W. Cayce

Clerk

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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 proceed 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 

appeal. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). If an appeal 

is frivolous, this court may dismiss it sua sponte. 5th Cir. R. 42.2.

In appeal 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 DENY a COA as unnecessary 

to appeal them. 28 U.S.C. § 2253(c)(1); see Romero-Rodriguez v. Gonzales, 

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, 

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707 F.2d at 220. Accordingly, we DENY Ortiz leave 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