### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 F e d e r a l 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). U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D August 9, 2 011 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-11027 Document: 00511565837 Page: 1 Date Filed: 08/09/2011No. 10-11027

Ruston has not sho w n t h at 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 u n d e r l yi n g judgment for review. Se e i d

. H e h as not alleged that bribery of the judge, fabrication of evidence, an unc o n s cio n ab l e p l an o r s ch e m e designed to improperly influence the court, or fraud occurred during the pendency of the instant § 2241 petition. See F E D
. R. C IV
. P. 60(d)(3). Ruston has not shown th a t his appeal involves “‘legal points arguable on their merits (and therefor e n ot frivolous).’” See Howard v. King , 707 F.2d 215, 220 (5th Cir. 1983). Thus, Ruston has not shown that the district c o u r t ab used 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 requ e s t f o r l e ave to proceed IFP is denied, and the appeal is dism i s sed. See 5 T H C I R
. R. 42.2; see also Baugh , 117 F.3d at 202 n.24. Ruston’s petition for writ of mandamus is al so denied. Although the p r e vi o usly 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 i n t h i s c o u r t any pro se initial pleading, including

a petition for mandamus relief, or any pro se appeal from a district court order without first re c e ivi ng 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 ju dge of the court. In requesting the required permiss i o n , Ruston shall inform the court of the bar stated in In re Ruston , Case: 10-11027 Document: 00511565837 Page: 2 Date Filed: 08/09/2011No. 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; SAN C TI O N REITERATED. Case: 10-11027 Document: 00511565837 Page: 3 Date Filed: 08/09/2011