IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-11027

Summary Calendar

LESTER JON RUSTON,

Petitioner-Appellant

v.

UNITED STATES OF AMERICA,

Respondent-Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:04-CR-191-1

USDC No. 3:04-CV-2568

Before KING, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:*

Lester Jon Ruston, federal civil detainee, # 26834-177, moves for leave to

proceed in forma pauperis (IFP) in this appeal of the denial of his motion to

vacate the judgment filed under Rule 60(d)(3) of the Federal Rules of Civil

Procedure. By moving to proceed IFP, Ruston is challenging the district court’s

certification that his appeal is not taken in good faith. Baugh v. Taylor, 117 F.3d

197, 202 (5th Cir. 1997). 

United States Court of Appeals

Fifth Circuit

F I L E D

August 9, 2011

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. 10-11027

Ruston has not shown that the district court abused its discretion

indenying his Rule 60(d)(3) motion. See Bailey v. Cain, 609 F.3d 763, 767 (5th

Cir. 2010), cert. denied, 131 S. Ct. 931 (2011). Ruston may not reassert claims

raised in his original 28 U.S.C. § 2241 petition because his appeal of the denial

of his Rule 60(d)(3) motion does not bring up the underlying judgment for

review. See id. He has not alleged that bribery of the judge, fabrication of

evidence, an unconscionable plan or scheme designed to improperly influence the

court, or fraud occurred during the pendency of the instant § 2241 petition. See

FED. R. CIV. P. 60(d)(3). Ruston has not shown that his appeal involves “‘legal

points arguable on their merits (and therefore not frivolous).’” See Howard v.

King, 707 F.2d 215, 220 (5th Cir. 1983). Thus, Ruston has not shown that the

district court abused its discretion in denying his Rule 60(d)(3) motion. See

Bailey, 609 F.3d at 767.

Ruston’s appeal is without arguable merit and is therefore frivolous. See

Howard, 707 F.2d at 220. Accordingly, his request for leave to proceed IFP is

denied, and the appeal is dismissed. See 5TH CIR. R. 42.2; see also Baugh, 117

F.3d at 202 n.24. Ruston’s petition for writ of mandamus is also denied.

Although the previously imposed sanction does not apply to the instant

appeal because the notice of appeal was filed before it was imposed, we remind

Ruston that he may not file in this court any pro se initial pleading, including

a petition for mandamus relief, or any pro se appeal from a district court order

without first receiving the written permission of an active judge of this court. 

Thus, before filing any pro se appeal or other pro se action in this court, Ruston

must submit to the clerk of this court a request for permission to file, which the

clerk shall direct to an active judge of the court. In requesting the required

permission, Ruston shall inform the court of the bar stated in In re Ruston,

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No. 10-11027

No. 10-10509 (5th Cir. Oct. 5, 2010), and In re Ruston, 10-10638 (5th Cir. Oct.

6, 2010). The bar does not apply to pleadings filed by counsel on Ruston’s behalf.

MOTIONS DENIED; APPEAL DISMISSED; SANCTION REITERATED.

Case: 10-11027 Document: 00511565837 Page: 3 Date Filed: 08/09/2011