     Case: 10-11027     Document: 00511565837         Page: 1     Date Filed: 08/09/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           August 9, 2011
                                     No. 10-11027
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

LESTER JON RUSTON,

                                                  Petitioner-Appellant

v.

UNITED STATES OF AMERICA,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:04-CR-191-1
                             USDC No. 3:04-CV-2568


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Lester Jon Ruston, federal civil detainee, # 26834-177, moves for leave to
proceed in forma pauperis (IFP) in this appeal of the denial of his motion to
vacate the judgment filed under Rule 60(d)(3) of the Federal Rules of Civil
Procedure. By moving to proceed IFP, Ruston is challenging the district court’s
certification that his appeal is not taken in good faith. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 10-11027

      Ruston has not shown that the district court abused its discretion
indenying his Rule 60(d)(3) motion. See Bailey v. Cain, 609 F.3d 763, 767 (5th
Cir. 2010), cert. denied, 131 S. Ct. 931 (2011). Ruston may not reassert claims
raised in his original 28 U.S.C. § 2241 petition because his appeal of the denial
of his Rule 60(d)(3) motion does not bring up the underlying judgment for
review. See id. He has not alleged that bribery of the judge, fabrication of
evidence, an unconscionable plan or scheme designed to improperly influence the
court, or fraud occurred during the pendency of the instant § 2241 petition. See
FED. R. CIV. P. 60(d)(3). Ruston has not shown that his appeal involves “‘legal
points arguable on their merits (and therefore not frivolous).’” See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983). Thus, Ruston has not shown that the
district court abused its discretion in denying his Rule 60(d)(3) motion. See
Bailey, 609 F.3d at 767.
      Ruston’s appeal is without arguable merit and is therefore frivolous. See
Howard, 707 F.2d at 220. Accordingly, his request for leave to proceed IFP is
denied, and the appeal is dismissed. See 5TH CIR. R. 42.2; see also Baugh, 117
F.3d at 202 n.24. Ruston’s petition for writ of mandamus is also denied.
      Although the previously imposed sanction does not apply to the instant
appeal because the notice of appeal was filed before it was imposed, we remind
Ruston that he may not file in this court any pro se initial pleading, including
a petition for mandamus relief, or any pro se appeal from a district court order
without first receiving the written permission of an active judge of this court.
Thus, before filing any pro se appeal or other pro se action in this court, Ruston
must submit to the clerk of this court a request for permission to file, which the
clerk shall direct to an active judge of the court. In requesting the required
permission, Ruston shall inform the court of the bar stated in In re Ruston,
   Case: 10-11027   Document: 00511565837      Page: 3   Date Filed: 08/09/2011




                                  No. 10-11027

No. 10-10509 (5th Cir. Oct. 5, 2010), and In re Ruston, 10-10638 (5th Cir. Oct.
6, 2010). The bar does not apply to pleadings filed by counsel on Ruston’s behalf.
      MOTIONS DENIED; APPEAL DISMISSED; SANCTION REITERATED.
