      Case: 19-10154          Document: 00515157232          Page: 1   Date Filed: 10/14/2019




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

                                                                                     FILED
                                            No. 19-10154                      October 14, 2019
                                                                                Lyle W. Cayce
NICOLAS ALFONSO PADRON,                                                              Clerk


                                                        Plaintiff-Appellant

v.

UNITED STATES OF AMERICA,

                                                        Defendant-Appellee

-----------------------------------------------------

NICOLAS A. PADRON,

                                                        Plaintiff-Appellant
v.

UNITED STATES OF AMERICA,

                                                        Defendant-Appellee


                      Appeal from the United States District Court
                           for the Northern District of Texas
                                USDC No. 3:18-CV-1831
                                USDC No. 3:18-CV-2924
     Case: 19-10154      Document: 00515157232         Page: 2    Date Filed: 10/14/2019


                                      No. 19-10154

Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Nicolas Alfonso Padron, federal prisoner # 44575-177, moves for leave to
proceed in forma pauperis (IFP) in this appeal of the district court’s dismissal
of his civil suit challenging the forfeiture of property in his criminal case
because he lacked standing. The motion is a challenge to the district court’s
certification that the appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). This court’s inquiry into a litigant’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).
       Padron fails to meet this standard. He contends that the district court
erred in denying his motion to proceed IFP on appeal because he has standing
to challenge the forfeiture of his property. Further, Padron argues that recent
Supreme Court decisions in Timbs v. Indiana, 139 S. Ct. 682 (2019), Honeycutt
v. United States, 137 S. Ct. 1626 (2017), and Luis v. United States, 136 S. Ct.
1083 (2016), allow a criminal defendant to recover untainted assets and should
be applied retroactively to his case.
       However, pursuant to the plea agreement, Padron agreed that any
property categorized as subject to forfeiture in the superseding indictment was
subject to forfeiture. He also agreed not to contest the forfeiture and to hold
the government harmless from any challenge to the forfeiture of such property.
Padron did not challenge the forfeiture in his direct criminal appeal and has
produced no evidence to establish that he has a facially colorable interest in



       * 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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    Case: 19-10154    Document: 00515157232     Page: 3   Date Filed: 10/14/2019


                                 No. 19-10154

the seized property as the evidence indicates that he forfeited his right, title,
and interest in the contested properties. See United States v. $38,570 U.S.
Currency, 950 F.2d 1108, 1112 (5th Cir. 1992). Therefore, Padron’s property
interests were extinguished in the criminal judgment, and he lacked standing
to challenge the forfeiture in a civil action against the government. See United
States v. De Los Santos, 260 F.3d 446, 448 (5th Cir. 2001); $38,570 U.S.
Currency, 950 F.2d at 1111.
      Accordingly, the motion for leave to proceed IFP is DENIED, and the
appeal is DISMISSED AS FRIVOLOUS. See Baugh, 117 F.3d at 202 n.24; 5TH
CIR. R. 42.2.
      The dismissal of this appeal as frivolous constitutes a strike under 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387–88 (5th Cir.
1996), abrogated in part on other grounds by Coleman v. Tollefson, 135 S. Ct.
1759, 1762–63 (2015). Padron is WARNED that accumulating three strikes
will preclude him from proceeding IFP in any civil action or appeal while he is
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).




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