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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20093 Conference Calendar

ALFRED LEE BRANUM Plaintiff-Appellant

v. GARY L JOHNSON, EXECUTIVE DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INST I TUTIONAL DIVISION; CHIS CARTEA; ROBERT KOENIG; FRANK ROSENQUEST; WARDEN EDU ARDO CORMONA; ASSIST WARDEN MICHAEL HALL Defendants-Appellees

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:03-CV-3515
Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges. PER CURIAM: * Alfred Lee Branum, Texas prisoner # 286354, and a co-plaintiff brought the present civil action as a putative class action pursuant to 42 U.S.C. § 1983 and the Americans with DisabilitiesAct, 42 U.S.C. §§ 12101-12213. The district United States Court of Appeals

Fifth Circuit 

### F I L E D December 11, 2007 Charles R. Fulbruge III ClerkNo. 07-20093

2 court dismissed the case as frivolous. Branum seeks leave to proceed in forma pauperis (IFP) on appeal ofthe district court’s denial of his motion for extension oftime to file a notice ofappeal and motions to reopen the time to file an appeal. By moving for leave to proceed IFP, Branum is challenging the district court’s certification that his appeal is not taken in good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); F ED

. R. A PP

. P. 24(a)(5). Branum argues that correspondence that he sent tothis court should have been construed as a timely motion to reopen the time to file an appeal. He additionally asserts that his motions should have been granted because he is a layman untrained in lawand because he has difficulty moving around the prison law library because he is wheelchair bound. As Branum did not file anything that could be reasonably construed as a motion for extension of time to file a notice of appeal within 30 days of the expiration of the time to file a timely notice of appeal, the district court’s denial of his motion for extension of time to file a notice of appeal does not present a nonfrivolous issue for appeal. See F ED

. R. A PP

. P. 4(a)(5)(A)(i). As Branum did not file anything, including his correspondence to this court, that could be reasonably construed as a motion to reopen the time tofile an appeal within 180 days ofthe entry ofjudgment, the district court’s denial of his motions to reopen the time to file an appeal does not present a nonfrivolous issue for appeal. See F ED

. R. A PP

. P. 4(a)(6)(B). Branum’s argument that his motions should have been granted because he is an untrained layman who has difficulty moving around the prison library invokes the doctrine of equitable tolling. Assuming arguendo that equitable tolling is applicable, Branum has not shown the existence ofa nonfrivolous issue for appeal because he has not shown the existence of the rare and exceptional circumstances necessary tojustify equitable tolling. See Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000). To the extent that Branum’s argument challengesNo. 07-20093

3 the denial of his motion for appointment of counsel, it also does not present a nonfrivolous issue for appeal because Branum has not shown the exceptional circumstances necessary to require the appointment of counsel. See Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982). The IFP motion is denied, and the appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202; 5 T H C IR

. R. 42.2. Branum is cautioned that the dismissal of this appeal as frivolous and the district court’s dismissal of the complaint as frivolous both count as strikes under 28 U.S.C. § 1915(g). See Adepegba v. H ammons, 103 F.3d 383, 387-88 (5th Cir. 1996). He is cautioned that ifhe accumulates three strikes under § 1915(g), hewill be unable to proceed IFP in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g). IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.