     Case: 14-50955      Document: 00512952500         Page: 1    Date Filed: 02/27/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 14-50955                                FILED
                                  Summary Calendar                       February 27, 2015
                                                                           Lyle W. Cayce
                                                                                Clerk
DANIEL COBBLE,

                                                 Petitioner−Appellant,

versus

THE BROWN SCHOOL, a Private Mental Institution;
CITY OF SAN MARCOS TEXAS,

                                                 Respondents−Appellees.



                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:14-CV-689




Before SMITH, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *

       Daniel Cobble, Georgia prisoner # 758572, moves to proceed in forma
pauperis (“IFP”) on appeal of the dismissal, without prejudice, of his 28 U.S.C.
§ 2241 petition. The district court denied his motion to proceed IFP on appeal,



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-50955    Document: 00512952500     Page: 2   Date Filed: 02/27/2015


                                 No. 14-50955

certifying that the appeal was not taken in good faith. By moving in this court
for IFP status, Cobble is challenging that certification. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997).

      The district court sitting in the Western District of Texas determined
that it lacked jurisdiction over Cobble’s petition because he was not in custody
in Texas. A petitioner must be in custody as defined in § 2241(c)(3) in order to
seek relief under § 2241. See Braden v. 30th Judicial Cir. Ct. of Ky., 410 U.S.
484, 488 (1973). He is in custody if he attacks his current confinement or,
under certain circumstances, a potential future confinement. Id. at 488−89 &
n.4. Cobble, though, is not currently confined in Texas, nor does he allege that
Texas is attempting to confine him in the future. Accordingly, there is no argu-
able issue that he is in custody for purposes of raising claims challenging con-
finement in Texas. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).

      Because Cobble is not in custody in Texas, he cannot obtain the relief he
seeks under § 2241. The appeal is without arguable merit and thus is frivolous.
The motion to proceed IFP is DENIED, see Howard, 707 F.2d at 219−20, and
the appeal is DISMISSED, see Baugh, 117 F.3d 197, 202 n.24; 5TH CIR. R. 42.2.
Cobble’s motion for bond pending appeal is DENIED.




                                       2
