IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50932

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CULLEN REED HARRIS,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:91-43-2

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:

*

Cullen Reed Harris, federal prisoner # 01864-063, was convicted of

conspiracy to manufacture more than 1,000 grams of methamphetamine and

manufacturing more than 1,000 grams of methamphetamine. He was sentenced

to life imprisonment and ten years of supervised release on each count, the

sentences to be served concurrently, and fined $25,000 on each count, for a total

fine of $50,000. Harris seeks leave to proceed in forma pauperis (IFP) on appeal

from the district court’s denial of his “Motion to Recover Stolen Moneys” in which

United States Court of Appeals

Fifth Circuit

F I L E D

July 14, 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.

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No. 09-50932

he sought the return of an alleged overpayment on his fine and the vacatur of

one of his convictions on the ground that the indictment was duplicitous.

By seeking leave to proceed IFP, Harris is challenging the district court’s

certification that his appeal is not taken in good faith because it is frivolous. See

Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3);

FED. R. APP. P. 24(a)(5).

Harris argues that the indictment was duplicitous because both of his

convictions were for the same conduct, making one of his $25,000 fines and one

of his $50 special assessments improper. This claim is a challenge to his

convictions and sentences, and it could only have been properly raised under

§ 2255. See Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000). The district

court, however, did not have jurisdiction to construe Harris’s motion as a § 2255

motion because Harris had previously filed a § 2255 motion and had not received

permission from this court to file a successive § 2255 motion. See Hooker v.

Sivley, 187 F.3d 680, 681-82 (5th Cir. 1999).

Harris argues that the Government collected $275 more than he owed on

his fines. This claim is a challenge to the manner and execution of the collection

of his fines, not a challenge to any action taken by the district court. A claim

challenging the manner and execution of the collection of a fine should be

brought in a habeas corpus petition under 28 U.S.C. § 2241 because the claim is

a claim challenging the execution of a sentence. See United States v. Diggs, 578

F.3d 318, 319-20 (5th Cir. 2009). As Harris is serving his sentence in Tennessee,

outside the jurisdiction of the district court, the district court did not have

jurisdiction to consider this claim. See id. at 320.

The district court did not have jurisdiction to consider either of Harris’s

claims, and this appeal is thus “from the denial of a meaningless, unauthorized

motion.” United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994). Harris has

failed to raise any nonfrivolous issues for appeal. See Howard v. King, 707 F.2d

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215, 220 (5th Cir. 1983). The IFP motion is DENIED, and the appeal is

DISMISSED as frivolous. See Baugh, 117 F.3d at 202; 5TH CIR. R. 42.2.

This court previously warned Harris that the filing of further frivolous

appeals would invite the imposition of sanctions. See United States v. Harris,

310 F. App’x 705, 707 (5th Cir. 2009); United States v. Harris, No. 04-51338, slip

op. at 2 (5th Cir. Dec. 14, 2005) (unpublished). Nevertheless, Harris has filed

the present frivolous appeal. Accordingly, Harris is ORDERED to pay a sanction

in the amount of $275 to the Clerk of this Court. Harris is BARRED from filing

in this court or in any court subject to this court’s jurisdiction any appeal or any

challenge to his conviction or sentence until the sanction is paid in full without

first obtaining the permission of the forum court. Harris is CAUTIONED that

filing any future frivolous appeals or challenges to his conviction or sentence in

this court or any court subject to this court’s jurisdiction will subject him to

additional and progressively more severe sanctions.

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