### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 60221 Summary Calendar

JAMES WALTER CREEL , Petitioner

– Appellant ,

v. JAQUELYN BANKS, Superintendent, Southern Mississippi Correctional Institution; EDDIE H. BOWEN , Respondent s

– Appellee s

.

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 2:17

- CV

- 29

Before SMITH, HAYNES, and WILLETT, Circuit Judges. PER CURIAM: * James Walter Creel, Mississippi prisoner # 33420, was convicted in 1994 of escaping custody while under indictment for burglary and was sentenced to life imprisonment without parole as a habitual offender. In 2017 , Creel filed his four th 28 U.S.C. § 2254 petition challenging that judgment. Construing the petition as successive, the district court ordered it transferred to this court,

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 13, 2018 Lyle W. Cayce Clerk Case: 17-60221 Document: 00514428218 Page: 1 Date Filed: 04/13/2018No. 17

- 60221

2 which denied Creel authorization to pr oceed on his successive claims. See In re Ep ps , 12 7 F.3d 364, 365 (5th Cir. 1997); 28 U.S.C. § 22 44(b)(2), (b)(3)(C)

. Creel now appeals the district court’s transfer order and moves for leave to pr oceed in forma pauperis (IFP) in this court

. Creel avers that his present § 2254 proceedings are not successive because his first habeas petition, in 1998, was dismissed without prejudice for lack of exhaustion; his second petition, in 2000, was withdrawn prior to ruling; and, contrary to the district court’s finding, he did no t file a third

- in

- time habeas petition in 2004. See In re Gasery , 116 F.3d 1051, 1052 (5th Cir. 1997) (holding that a second

- in

- time § 2254 petition is not successive if the first petition was dismissed without prej udice for failure to exhaust). Creel’s

as sertions regarding his 1998 and 2004 petitions are patently false. His 1998 petition was dismissed as both procedurally barred and time barred, which rendered any subsequently fil ed habeas petition successive. See In re Flowers , 595 F.3d 204, 205 (5th Cir. 2009)

. And the district court’s records clearly reflect a 2004 habeas petition filed by James Walter Creel, Mississippi prisoner
# 33420, that was dismissed with prejudice. Consequently, there is no merit to Creel’s claim that his 2017 habeas petition is not successive , and his appeal of the district court’s transfer order is thus wholly frivolous

. See Howard v. King , 707 F.2d 215, 220 (5th Cir. 1983)

. Creel’s motion to pr oceed IFP on appeal is DENIED. B ecause the merits of his appeal “ are so intertwined with the certification decision as to constitute the same issue,” the app eal is DISMISSED AS FRIVOLOUS. See Baugh v. Taylor , 117 F.3d 197, 202 & n. 2 4 (5th Cir. 1997); 5 TH C IR . R. 42.2. Creel is further WARNED, as he has been twice before, that future frivo lous, repetitive, or otherwise abusive filings will invite the imposition of additional sanctions, which may include dismissal, monetary sanctions, and restrictions on his Case: 17-60221 Document: 00514428218 Page: 2 Date Filed: 04/13/2018No. 17

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3 ability to file pleadings in this court and any court subject to this court’s jurisd iction. Case: 17-60221 Document: 00514428218 Page: 3 Date Filed: 04/13/2018