* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50497

Summary Calendar

JAMES S DAVIS

Petitioner-Appellant

v.

M TRAVIS BRAGG, Warden

Respondent-Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:08-CV-123

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

James S. Davis moves this court for leave to proceed in forma pauperis

(IFP) in his appeal from the district court’s dismissal of a petition for a writ of

habeas corpus filed pursuant to 28 U.S.C. § 2241. The district court construed

Davis’s petition as a successive 28 U.S.C. § 2255 motion and dismissed itfor lack

of jurisdiction as successive and unauthorized. The district court denied Davis’s

motion for leave to proceed IFP on appeal and certified that an appeal would not

be taken in good faith.

United States Court of Appeals

Fifth Circuit

F I L E D

October 27, 2008

Charles R. Fulbruge III

Clerk
No. 08-50497

2

Davis’s IFP motion is a challenge to the district court’s certification

decision; thus, the IFP motion “must be directed solely to the [district] court’s

reasons for the certification decision.” Baugh v. Taylor, 117 F.3d 197, 202 (5th

Cir. 1997). In his IFP motion, Davis does not address the district court’s reasons

for denying IFP. He fails to assert that his petition is not a successive § 2255

motion. He also fails to argue that he was authorized to file a successive motion.

When an appellant fails to identify error in the district court’s analysis, it is the

same as if the appellant had not appealed the decision. Brinkmann v. Dallas

County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Although pro

se briefs are afforded liberal construction, see Haines v. Kerner, 404 U.S. 519,

520 (1972), even pro se litigants must brief arguments in order to preserve them.

Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Further, Davis has not

shown that he is entitled to proceed under § 2255(e)’s savings clause. ReyesRequena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Accordingly, Davis

has not shown that his appeal is taken in good faith. See Baugh, 117 F.3d at

202.

Davis also moves this court for release pending appeal. A petitioner

seeking to be released on bail pending habeas review must demonstrate that he

“has raised substantial constitutional claims upon which he has a high

probability of success,” and that “extraordinary or exceptional circumstances

exist which make the grant of bail necessary to make the habeas remedy

effective.” Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974). Davis has not

made the required showing. See id.

Accordingly, Davis’s motions for leave to proceed IFP and for release

pending appeal are denied. Davis’s emergency motion for immediate release and

his requests for expedited consideration, a remand, and an order granting leave

to file first amended petition are also denied.

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

Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is
No. 08-50497

3

frivolous, it is dismissed. See 5th Cir. R. 42.2. Davis is WARNED that further

frivolous filings will result in the imposition of sanctions.

IFP DENIED; APPEAL DISMISSED; ALL OUTSTANDING MOTIONS

DENIED; SANCTION WARNING ISSUED.