IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No.10-50025

Summary Calendar

RAYMOND J. FIERRO,

Plaintiff-Appellant

v.

JACK ROBISON; ERNEST WAYNE FLORES; DIB WALDRIP; KATHY H.

FAULKNER,

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:09-CV-980

Before WIENER, PRADO, and OWEN, Circuit Judges.

PER CURIAM:

*

Plaintiff-Appellant Raymond J. Fierro, Texas prisoner # 1295462, appeals

the dismissal of his “complaint” in federal common law against the trial judge

in his criminal trial, the district attorney, the court reporter, and the clerk of

court. He alleged that the state officials falsified the appellate record in his

conviction for three counts of injury to a child in violation of First, Fifth, Sixth,

Seventh, Eighth, and Fourteenth Amendments, as well as 18 U.S.C. §§ 1001 and

United States Court of Appeals

Fifth Circuit

F I L E D

December 27, 2010

Lyle W. Cayce

Clerk

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: 10-50025 Document: 00511332428 Page: 1 Date Filed: 12/27/2010
No. 10-50025

1018. The district court dismissed the complaint pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i)-(ii) and § 1915A(b)(1) insofar as it was a 42 U.S.C. § 1983 civil

rights action and alternatively pursuant to 28 U.S.C. § 2244(b)(3)(A) as

unauthorized successive 28 U.S.C. § 2254 application. Fierro has filed a motion

for leave to proceed in forma pauperis (IFP) on appeal, challenging the district

court’s denial of IFP status and certification that his appeal would not be taken

in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 1915(a)(3);

FED. R. APP. P. 24(a)(3).

Fierro insists that his “complaint” does not arise under § 1983 or § 2254

but rather is a “jury trial demand complaint” in which he demands “his inviolate

Seventh Amendment right based on the criminal version of § 1983 which is Title

18 U.S.C. § 240, 241.” Federal courts are courts of limited jurisdiction. United

States v. Hazelwood, 526 F.3d 862, 863 (5th Cir. 2008). Fierro’s invocation of

constitutional amendments are directed at his efforts to have the results of his

application for state and federal habeas relief invalidated by the alleged

negligence/criminality of these state officers. The Seventh Amendment question

he raises in his complaint is purely incidental to those efforts and does not

provide a basis for subject matter jurisdiction. See Johnston v. Byrd, 354 F.3d

982, 984 (5th Cir. 1965).

Fierro’s claim that his complaint arises under the “criminal version of

§ 1983” and cites 18 U.S.C. § 241 (which criminalizes conspiracy against the free

exercise of a constitutional right), is unavailing. The criminal statutes on which

Fierro relies do not supply a private cause of action. See Cort v. Ash, 422 U.S.

66, 79 (1975).

Fierro’s appeal is without merit and is therefore frivolous. See Howard v.

King, 707 F.2d 215, 219-20 (5th Cir. 1983). The motion to proceed IFP is

DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at

202 & n.24; 5TH CIR. R. 42.2.

2

Case: 10-50025 Document: 00511332428 Page: 2 Date Filed: 12/27/2010