     Case: 10-30086 Document: 00511384353 Page: 1 Date Filed: 02/16/2011




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

                                                 FILED
                                                                          February 16, 2011
                                     No. 10-30086
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

HERMAN STEVENSON, III,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:95-CR-377-3


Before DENNIS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
       Herman Stevenson, III, federal prisoner # 24905-034, seeks leave to
proceed in forma pauperis (IFP) on appeal from the district court’s denial of his
motion to dismiss his indictment. Stevenson argues that the district court erred
in concluding that his motion was an unauthorized successive 28 U.S.C. § 2255
motion. He contends that the prosecution engaged in misconduct before the
grand jury by arguing that he was involved in a conspiracy when the conspiracy
involved a Government informant. Stevenson also argues that the district court

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-30086 Document: 00511384353 Page: 2 Date Filed: 02/16/2011

                                  No. 10-30086

abused its discretion in denying his motion for the production of grand jury
transcripts for lack of jurisdiction. Stevenson’s motion to file a supplemental
brief is GRANTED.
      A movant for IFP on appeal must show that he is a pauper and that he will
present a nonfrivolous appellate issue. Carson v. Polley, 689 F.2d 562, 586 (5th
Cir. 1982). Stevenson’s arguments were previously raised in a 28 U.S.C. § 2241
petition and a § 2255 motion. Stevenson’s motion to dismiss the indictment filed
in the district court was an unauthorized motion that the district court was
without jurisdiction to entertain. See United States v. Early, 27 F.3d 140, 142
(5th Cir. 1994).
      It is questionable whether Stevenson’s motion for the production of grand
jury transcripts had a valid jurisdictional basis in the district court. See United
States v. Carvajal, 989 F.2d 170, 170 (5th Cir. 1993). However, even if the court
retained jurisdiction over the motion, the district court did not abuse its
discretion in denying the motion because Stevenson failed to show a
particularized need for the grand jury materials.          See United States v.
Miramontez, 995 F.2d 56, 57-58 (5th Cir. 1993). Stevenson was convicted of a
conspiracy involving persons other than Government informants, and thus, there
is no basis for his claim of prosecutorial misconduct. United States v. Millsaps,
157 F.3d 989, 992 (5th Cir. 1998).
      Stevenson has not established that he will raise a nonfrivolous appellate
issue. See Carson, 689 F.2d at 586. Accordingly, we DENY the motion to
proceed IFP on appeal, and we DISMISS Stevensons’s appeal as frivolous. See
5 TH C IR. R. 42.2. All other outstanding motions are DENIED.




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