     Case: 14-40136      Document: 00512953173         Page: 1    Date Filed: 03/02/2015




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

                                    No. 14-40136                                   FILED
                                  Summary Calendar                             March 2, 2015
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DAVID ALAN VOGEL, also known as David Allan Vogel,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:13-CV-323


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       David Alan Vogel, federal prisoner # 09472-049, has filed a motion for
leave to proceed in forma pauperis (IFP) on appeal. To obtain leave to proceed
IFP on appeal, Vogel must demonstrate financial eligibility and a nonfrivolous
issue for appeal. See FED. R. APP. P. 24(a); 28 U.S.C. § 1915(a)(1); Carson v.
Polley, 689 F.2d 562, 586 (5th Cir. 1982).




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40136    Document: 00512953173       Page: 2   Date Filed: 03/02/2015


                                 No. 14-40136

      Vogel seeks to appeal the district court’s denial of his motion for release
pending disposition of his 28 U.S.C. § 2255 motion. Release should be granted
to an offender pending collateral review “only when the petitioner has raised
substantial constitutional claims upon which he has a high probability of
success, and also when extraordinary or exceptional circumstances exist which
make the grant of bail necessary to make the habeas remedy effective.” Calley
v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974).
      In his IFP motion and supporting brief, Vogel argues that the
extraordinary circumstance of excessive delay exists and that his post-
conviction remedy will not be effective unless he is released. Regardless of the
merits of Vogel’s § 2255 claims, upon which the district court has not yet ruled,
Vogel has failed to show the existence of any “extraordinary or exceptional
circumstances” necessitating his release to make the post-conviction remedy
effective. See Calley, 496 F.2d at 702-03 & n.1. Although Vogel is correct that
the district court did not apply the Calley standard, we conclude that the
district court did not err in denying Vogel’s motion for release based on the
application of the proper standards. See id.
      Vogel has not demonstrated that he will raise a nonfrivolous issue on
appeal. His motion for leave to proceed IFP on appeal is DENIED. Vogel’s
appeal is DISMISSED as frivolous pursuant to 5TH CIR. R. 42.2. To the extent
that Vogel’s pleadings may be construed as a motion for release pending appeal
directed to this court, no appeal is pending and such motion is DENIED.
      IFP DENIED; RELEASE PENDING APPEAL DENIED; APPEAL
DISMISSED AS FRIVOLOUS.




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