* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

January 9, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 05-10012

Summary Calendar

 

JOHN ALBERT ESTRADA, SR.,

Petitioner-Appellant,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:01-CV-371-P

--------------------

Before SMITH, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

John Albert Estrada, Sr., Texas prisoner # 744108, seeks a

certificate of appealability (COA) to appeal the district court’s

denial of his FED. R. CIV. P. 60(b) motion to vacate the judgment

in a prior proceeding under 28 U.S.C. § 2254. Estrada’s motion

raised claims not only under Rule 60(b)(3) and (6), but also

under the court’s inherent equitable powers to respond to a fraud

on the court. The district court ruled that Estrada’s Rule 60(b)

motion was essentially a second or successive petition for habeas
No. 05-10012

-2-

corpus relief, which it could not consider unless this court

authorized its filing. The district court also determined that

Estrada’s allegations of fraud did not meet the requirements of

fraud on the court.

A COA may be issued only if Estrada has made a substantial

showing of the denial of a constitutional right. 28 U.S.C 

§ 2253(c). To the extent that Estrada raised an equitable claim

in district court, however, he does not need a COA to proceed on

appeal. See Fierro v. Johnson, 197 F.3d 147, 150 (5th Cir.

1999). He does, however, need leave to proceed IFP.

Estrada argues that the Respondent committed a fraud on the

court when he alleged in his brief that Estrada had signed a

judicial confession to aggravated sexual assault, when the state

court record introduced by the Respondent shows that Estrada had

not signed it. The district court determined that the

Respondent’s misstatement did not amount to fraud on the court. 

“To establish fraud on the court, it is necessary to show an

unconscionable plan or scheme which is designed to improperly

influence the court in its discretion.” Fierro, 197 F.3d at 154. 

Assuming, without deciding, that 28 U.S.C. § 2244(b) has not

foreclosed the use of the courts’ inherent powers to vacate prior

judgments for fraud on the federal courts, Estrada has failed to

demonstrate, by clear and convincing evidence, that the

Respondent perpetrated a fraud on the courts. See Kinnear-Weed
No. 05-10012

-3-

Corp. v. Humble Oil & Refining Co., 441 F.2d 631, 636 (5th Cir.

1971).

To the extent that Estrada’s motion to vacate judgment is

construed as sounding under FED. R. CIV. P. 60(b), his motion for

a COA is DENIED. See Gonzales v. Crosby, 125 S. Ct. 2641, 2647-

48, 2651 (2005). To the extent that Estrada argues that he is

entitled to equitable relief from a fraudulently obtained

judgment, his motion for a COA is DENIED AS UNNECESSARY. See

Fierro v. Johnson, 197 F.3d 147, 150 (5th Cir. 1999).

Estrada also moves for leave to proceed in forma pauperis

(IFP) on appeal. The district court denied his IFP motion,

certifying under 28 U.S.C. § 1915(a)(3) and FED. R. APP. P.

24(a)(3) that Estrada’s appeal was not taken in good faith. We

construe his motion to proceed IFP on appeal as a challenge to

the district court’s certification decision. See Baugh v.

Taylor, 117 F.3d 197, 202 (5th Cir. 1997). We limit our inquiry

“to whether the appeal involves legal points arguable on their

merits (and therefore not frivolous).” Howard v. King, 707 F.2d

215, 220 (5th Cir. 1983) (internal quotation marks and citation

omitted). Estrada’s appeal of the district court’s equitable

ruling does not involve legal points arguable on their merits. 

Accordingly, we DENY IFP status and DISMISS Estrada’s appeal as

frivolous. See 5TH CIR. R. 42.2.
No. 05-10012

-4-

COA DENIED AS TO FED. R. CIV. P. 60(b) CLAIMS; COA DENIED AS

UNNECESSARY AS TO EQUITABLE CLAIMS; IFP DENIED; APPEAL DISMISSED

AS FRIVOLOUS