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. 08-60976

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

HAROLD DAMPER,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 2:98-CR-5-1

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Harold Damper, federal prisoner # 14313-112, seeks permission to proceed

in forma pauperis (IFP) to appeal the district court’s denial of his motion to

disqualify Judge Keith Starrett pursuant to 28 U.S.C. § 455. Damper contends

that Judge Starrett abused his discretion in not immediately recusing himself

because he “was assigned a case wherein his first cousin, while acting as an

attorney for the Government, illegally destroyed evidence prior to what should

have been a mandatory evidentiary hearing.” Damper asserts that in addition

United States Court of Appeals

Fifth Circuit

F I L E D

November 24, 2009

Charles R. Fulbruge III

Clerk
No. 08-60976

2

to recusing himself, Judge Starrett should have reported Assistant United States

Attorney (AUSA) Richard T. Starrett’s unethical actions. Furthermore, Damper

argues that Judge Starrett failed to hold an evidentiary hearing regarding his

§ 2255 motion because Judge Starrett was aware of his cousin’s unethical

behavior. Damper further contends that he was entitled to a new sentencing

hearing following Judge Starrett’s decision to vacate his previous eight-year

term of supervised release and reduce it to a six-year term. By moving for leave

to proceed IFP, Damper is challenging the district court’s certification that his

appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th

Cir. 1997).

Damper fails to set forth any facts that would lead a reasonably objective

person to doubt the impartiality of the district court judge. See § 455(a), (b);

Andrade v. Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003). Damper’s argument

that Judge Starrett should have recused himself because he was aware that

AUSA Starrett destroyed evidence, and as such he was denied an evidentiary

hearing on his § 2255 motion was not raised by Damper in his motion for

disqualification before the district court. In his briefs, Damper fails to challenge

the district court’s reasoning for denying his motion for disqualification. He does

not challenge Judge Starrett’s determination that there was no appearance of

impropriety resulting from Judge Starrett’s handling of Damper’s case since the

case was reassigned from AUSA Starrett to another AUSA before Judge Starrett

was assigned the case from Judge Charles W. Pickering. Damper also does not

challenge the district court’s determination that disqualification was not

required under § 455(b)(5) because, although Judge Starrett and AUSA Starrett

are first cousins, their relation is not “a person within the third degree of

relationship.”

When an appellant fails to identify any error in the district court’s

analysis, it is the same as if the appellant had not appealed that issue.

Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
No. 08-60976

3

1987). Although pro se briefs are afforded liberal construction, 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).

Therefore, Damper has abandoned any challenge to the district court’s

certification decision by failing to raise the issues in his motion or brief. See

Brinkmann, 813 F.2d at 748.

In any event, Damper’s assertion that AUSA Starrett unethically

destroyed evidence is not supported by the record. The evidence Damper is

referring to in his brief is the crack cocaine that was seized as evidence in his

case. On August 27, 2002, Judge Pickering granted the Government’s request

to destroy the crack cocaine, which was in the custody of the FBI, since Damper’s

case had concluded. As the Government argues in its brief, the destruction of

evidence following the conclusion of a case is routine. Furthermore, other than

conclusory assertions, Damper has not shown any bad faith on the part of the

Government in destroying the crack cocaine. Cf. United States v. Gibson, 963

F.2d 708, 711 (5th Cir. 1992).

To the extent Damper challenges the district court’s decision regarding his

28 U.S. C. § 2255 motion, such a claim would be unreviewable since this court

has previously denied a certificate of appealability regarding Damper’s § 2255

motion, and he has not sought permission to file a successive § 2255 in the

district court. See § 2255(h). Accordingly, Damper’s request for leave to proceed

IFP is denied and his appeal is dismissed as frivolous. See Baugh, 117 F.3d at

202 n.24; 5TH CIR. R. 42.2.

IFP DENIED; APPEAL DISMISSED.