                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  February 23, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-50482
                          Conference Calendar



PRINCE S. J. WEBBER,

                                      Plaintiff-Appellant,

versus

U.S. PAROLE COMMISSION,

                                      Defendant-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                       USDC No. 3:02-CV-428
                       --------------------

Before BARKSDALE, GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

     Prince S. J. Webber, federal prisoner # 04349-000, seeks

leave to appeal in forma pauperis (IFP) the district court’s

denial of his FED. R. CIV. P. 60(b) motion, filed after the

denial of his 28 U.S.C. § 2241 petition.    The district court

denied Webber’s request for leave to proceed IFP, certifying that

the appeal was not taken in good faith.

     Although, as Webber contends, the Prison Litigation Reform

Act does not apply to habeas actions, see Davis v. Fechtel,


     *
       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this opinion should not be published and is not precedent except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.
                          No. 04-50482
                               -2-

150 F.3d 486, 490 (5th Cir. 1998), Webber still is required to

establish that he is economically eligible and will raise a

nonfrivolous issue to proceed IFP on appeal.    See FED. R. APP. P.

24(a)(5); Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

     Webber argues that the district court erred in denying the

FED. R. CIV. P. 60(b) motion in which he argued that the district

court had failed to consider four issues regarding his December

2002 administrative appeal.   Webber raised these issues in his

response to the Parole Commission’s motion for summary judgment,

as well as in a motion for judicial notice.    He asserts that his

petition should have been dismissed without prejudice for failure

to exhaust these issues because the district court determined

that it was premature for Webber to raise them.    However, Webber

also contends that he was denied due process because the district

court did not address the merits of these claims.

     The district court incorrectly held that Webber had not

objected to the magistrate judge’s failure to address the issues

relating to his December 2002 administrative appeal.    However,

Webber still has not raised a nonfrivolous issue for appeal.

The district court’s determination regarding the December 2002

administrative appeal was not made on the basis that Webber’s

claims were unexhausted, but rather on the basis that he was

raising claims outside the scope of the petition he had filed.

Webber has not shown how this deprived him of due process.

Because Webber’s claims were not dismissed for failure to
                           No. 04-50482
                                -3-

exhaust, his argument that the district court erred by not

dismissing his petition without prejudice is without merit.

Webber’s contention that the district court should not have

denied his Rule 60(b) motion because it was unopposed is

meritless.

     Webber has not shown that he will raise a nonfrivolous issue

for appeal.   Accordingly, the motion for leave to proceed IFP on

appeal is DENIED, and the appeal is DISMISSED as frivolous.   See

5TH CIR. R. 42.2; Howard, 707 F.2d at 219-20.
