IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-11114

MELVIN WIAND,

Plaintiff-Appellant

v.

UNITED STATES OF AMERICA,

Defendant-Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:13-CV-1433

Before JONES, CLEMENT and PRADO, Circuit Judges.

PER CURIAM:*

Melvin Wiand, federal prisoner # 37221-177, has applied for leave to 

appeal in forma pauperis (IFP) from the district court’s judgment granting the 

Government’s motion to dismiss and/or for summary judgment and dismissing 

Wiand’s civil action seeking return of property forfeited to the Government 

pursuant to the terms of his plea agreement. We construe Wiand’s motion as 

a challenge to the district court’s determination that his appeal has not been 

brought in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). 

* 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

May 7, 2014

Lyle W. Cayce

Clerk

 

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No. 13-11114

Our inquiry “is limited 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 citations omitted).

The district court erred, Wiand contends, in referring the case to the 

magistrate judge, in failing to give adequate reasons for adopting the 

magistrate judge’s findings and conclusions, and in denying his request for 

leave to proceed IFP on appeal; he complains also that the magistrate judge 

was unfairly biased. These contentions are without merit. See 28 U.S.C. 

§ 636(b); Liteky v. United States, 510 U.S. 540, 555 (1994).

Wiand asserts that his property was seized in violation of his 

constitutional rights and that the disposal of his property undermined his 

defense. He was not complaining below of the illegality of the forfeiture, he 

contends, but of the illegality of the initial seizure. Because these contentions 

go to the legality of his conviction, it is apparent that Wiand is attempting to 

circumvent the statutory bar on successive 28 U.S.C. § 2255 motions. See

United States v. Wiand, 535 F. App’x 332 (5th Cir.) (affirming dismissal of 

unauthorized and successive § 2255 motion asserting claims related to legality 

of suppression hearing because district court lacked jurisdiction), cert. denied, 

134 S. Ct. 667 (2013).

Wiand raises no argument with respect to the magistrate judge’s reliance 

on Solis v. Pruit, No. 99-40327, 2000 WL 423389, at 1 (5th Cir. Apr. 4, 2000) 

(unpublished), or with respect to the magistrate judge’s determination that 

Wiand had waived the right to challenge the legality of the forfeiture 

proceedings in pleading guilty. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th 

Cir. 1993) (unbriefed issues are waived).

IT IS ORDERED that leave to appeal IFP is DENIED because Wiand 

has failed to show that he will raise a nonfrivolous issue. The appeal is 

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No. 13-11114

DISMISSED AS FRIVOLOUS. See Baugh, 117 F.3d at 202 & n.24; see also

5TH CIR. R. 42.2. The dismissal of this appeal as frivolous counts as a strike 

for purposes of 28 U.S.C. §1915(g). See Adepegba v. Hammons, 103 F.3d 383, 

387-88 (5th Cir. 1996). We CAUTION Wiand that if he accumulates three 

strikes under § 1915(g) he will not be allowed 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).

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