     Case: 15-10319      Document: 00513513831         Page: 1    Date Filed: 05/19/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-10319
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
ETHAN TODD STEWART,                                                         May 19, 2016
                                                                           Lyle W. Cayce
                                                 Plaintiff-Appellant            Clerk

v.

STATE OF TEXAS,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:15-CV-449


Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Ethan Todd Stewart moves for leave to proceed in forma pauperis (IFP)
on appeal from the denial of his petition for a writ of mandamus, through which
he sought to compel Texas state courts to provide a written opinion on his
constitutional challenge to the Texas Civil Commitment of Sexually Violent
Predators Act (the Act), TEX. HEALTH & SAFETY CODE §§ 841.001 through
841.151.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10319

      By moving to proceed IFP, Stewart is challenging the district court’s
certification that his appeal was not taken in good faith because it is frivolous.
See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into an
appellant’s good faith “is limited to whether the appeal involves legal points
arguable on their merits (and therefore not frivolous).” Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted).
      Stewart has also filed two motions for leave to file a supplemental brief
in support of his IFP motion. We grant both of those motions. Stewart does
not brief any argument challenging the district court’s denial of a writ of
mandamus on the ground that federal courts lack the authority to issue writs
of mandamus to direct state courts or state judicial officers in the performance
of their duties. Stewart has thus waived any such argument and has failed to
show that a nonfrivolous issue exists as to the district court’s denial of his
petition for a writ of mandamus.
      Instead of contesting the district court’s reasons for denying a writ of
mandamus, Stewart raises several constitutional challenges to the Act,
including claims that the Act violates Heck v. Humphrey, 512 U.S. 477 (1994);
Cummings v. Missouri, 71 U.S. 277 (1866); the Double Jeopardy Clause; the
Sixth, Eighth, and Ninth Amendments; the constitutional protections against
bills of attainder and ex post facto laws; and his substantive due process, equal
protection, and procedural due process rights.         To the extent Stewart’s
arguments are raised for the first time here, they are not considered. See
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
      In any event, none of his arguments presents a nonfrivolous issue for
appeal because the claims he raises here fall within the ambit of the habeas
corpus procedures under 28 U.S.C. § 2254. See Chancery Clerk v. Wallace, 646
F.2d 151, 155-58 (5th Cir. Unit A Mar. 1981). Given Stewart’s prior § 2254



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                                  No. 15-10319

application challenging his civil commitment, Stewart’s instant challenges to
the Act present unauthorized second or successive § 2254 claims. See 28 U.S.C.
§ 2244(b)(3)(A). Stewart has not demonstrated that a nonfrivolous issue for
appeal exists as to the district court’s judgment in this case. See Howard, 707
F.2d at 220.
      Accordingly, his motion to proceed IFP on appeal is denied. See Howard,
707 F.2d at 220. This appeal is dismissed as frivolous. See Baugh, 117 F.3d
at 202 n.24; 5TH CIR. R. 42.2. Stewart’s two motions to supplement the record
are denied. Stewart’s petition for a hearing en banc is also denied, as it does
not comply with this court’s rules governing the form of requests for en banc
consideration. See 5TH CIR. R. 35.2.
      We note that the district court’s order denying leave to appeal IFP
contains an error in that it considers Stewart to be a “prisoner” for purposes of
the Prison Litigation Reform Act (PLRA).         As an individual under a civil
commitment pursuant to the Act, Stewart does not qualify as a prisoner under
the PLRA. See 28 U.S.C. § 1915(h); 28 U.S.C. § 1915A(c); Bohannan v. Doe,
527 F. App’x 283, 289-90 (5th Cir. 2013). Thus, he is not required under Baugh
to pay the full appellate filing fees and costs in installments upon his filing of
an IFP motion in this court. See Haynes v. Scott, 116 F.3d 137, 140 (5th Cir.
1997). This case is therefore remanded to the district court for the limited
purpose of correcting its order denying leave to appeal IFP, in order to account
for Stewart’s status as an individual who is not a prisoner under the PLRA.
      APPEAL DISMISSED; IFP MOTION DENIED; MOTIONS TO FILE
SUPPLEMENTAL BRIEF GRANTED; MOTIONS TO SUPPLEMENT THE
RECORD DENIED; PETITION FOR HEARING EN BANC DENIED; CASE
REMANDED FOR THE LIMITED PURPOSE OF CORRECTING ORDER
DENYING LEAVE TO PROCEED IFP ON APPEAL.



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