### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-50792 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. JOHN MICHAEL SHERWOOD, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 4:08-CV-28

Before KING, CLEMENT, and HIGGINSON, Circuit Judges. PER CURIAM: * John Michael Sherwood, federal prisoner # 92334-024, m oves for leave to p r oceed in forma p auperis (IFP) on a ppeal of the district court’s denial of hi s motion to reopen the appeal period pursuant to Rule 4(a)(6) of the F ederal Rules of Appellate Procedure. He argues that the district court abused its discretion in denying his motion because he met all of the requirements o f R ule 4(a)(6). He asserts that he was transferred to the Winkler County J a i l in Kermit, Texas, after the magistr a t e j udge issued a writ of habeas corpus ad testificandum so U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 14, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-50792 Document: 00512274654 Page: 1 Date Filed: 06/14/2013No. 12-50792

that he could a ttend an evidentiary hearing, that he was not served with a copy of the judgment at either his previous address in Illinois or at the jail in Texas, and that the docket sheet did not reflect that the judgment was served on him

as required by F ederal Rule of Civil Procedure 77(d)(1). Sherwood also contends that the clerk of c ourt sent a copy of the judgment to the attorney appointed to represent him o nly at the evidentiary hearing and that the attorney failed to give him notice of the judgment or file a notice of appeal on his behalf. Because Rule 4(a)(6) is permissive and c ompliance with Rule 4 (a)(6) does not require the district court to grant the motion, we review the district court’s denial of the motion for an abuse of discretion. See In re Jones , 970 F.2d 36, 39 (5th Cir. 1992). Given the totality of the circumstances, we di scern no abuse of discretion. Sherwood did not submit p roper notice of a change of address to the district court when he w as transferred to Texas, even though h e h ad p roperly changed his a ddress on two previous occasions; the district court also found that he w as properly served when the c lerk of court sent notice of the judgment to the most recent address that he p rovided. See Davis v. King , 2 70 F. App’x 355, 356 (5th Cir. 2008); Hurdsman v. Wackenhut Corrections Corp. , 2 18 F

. 3 d 7 4 4 (5th Cir. 2000). Because the district court’s denial of Sherwood’s motion d oes not rise to the l evel of an abuse of discretion, Sherwo o d h a s n o t s h own that there is a nonfrivolous issue for appeal. See Baugh v . Taylor , 117 F.3d 197, 202 (5th Cir. 1997); Howard v. King , 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his motion for leave to proceed IFP on appeal is DENIED and t h e a ppeal is DISMISSED AS FRIVOLOUS. See 5 T H C I R
. R. 42.2. Because Sherwood has not shown that he will raise a substantial question on appeal or that he h a s a particular need for the transcript, his motion for a transcript of the e videntiary hearing at Gov e rnment expense is also DENIED. See 28 U.S.C. § 753(f); see Harvey v. Andrist , 754 F.2d 569, 571 (5th Cir. 1985).

2 Case: 12-50792 Document: 00512274654 Page: 2 Date Filed: 06/14/2013