IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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, moves for leave to

proceed in forma pauperis (IFP) on appeal of the district court’s denial of his

motion to reopen the appeal period pursuant to Rule 4(a)(6) of the Federal Rules

of Appellate Procedure. He argues that the district court abused its discretion

in denying his motion because he met all of the requirements of Rule 4(a)(6). He

asserts that he was transferred to the Winkler County Jail in Kermit, Texas,

after the magistrate judge issued a writ of habeas corpus ad testificandum so

United States Court of Appeals

Fifth Circuit

F I L E D

June 14, 2013

Lyle W. Cayce

Clerk

* 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.

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No. 12-50792

that he could attend 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 Federal Rule of Civil Procedure 77(d)(1). Sherwood also contends

that the clerk of court sent a copy of the judgment to the attorney appointed to

represent him only 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 compliance 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 discern no abuse of

discretion. Sherwood did not submit proper notice of a change of address to the

district court when he was transferred to Texas, even though he had properly

changed his address on two previous occasions; the district court also found that

he was properly served when the clerk of court sent notice of the judgment to the

most recent address that he provided. See Davis v. King, 270 F. App’x 355, 356

(5th Cir. 2008); Hurdsman v. Wackenhut Corrections Corp., 218 F.3d 744 (5th

Cir. 2000). Because the district court’s denial of Sherwood’s motion does not rise

to the level of an abuse of discretion, Sherwood has not shown 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 the appeal is

DISMISSED AS FRIVOLOUS. See 5TH CIR. R. 42.2. Because Sherwood has not

shown that he will raise a substantial question on appeal or that he has a

particular need for the transcript, his motion for a transcript of the evidentiary

hearing at Government expense is also DENIED. See 28 U.S.C. § 753(f); see

Harvey v. Andrist, 754 F.2d 569, 571 (5th Cir. 1985).

2

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