     Case: 12-50299       Document: 00512149890         Page: 1     Date Filed: 02/20/2013




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

                                                                            FILED
                                                                         February 20, 2013
                                     No. 12-50299
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DWAUN JABBAR GUIDRY,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 5:04-CR-254-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Dwaun Jabbar Guidry, federal prisoner # 43363-180, appeals the denial
of his motions for post-conviction DNA testing pursuant to 18 U.S.C. § 3600 and
disclosure of stored DNA samples and DNA analyses for criminal defense
purposes pursuant to 42 U.S.C. § 14132(b)(3)(C). The district court denied
Guidry leave to proceed in forma pauperis (IFP) on appeal, and Guidry seeks
leave to proceed IFP on appeal from this 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50299     Document: 00512149890      Page: 2    Date Filed: 02/20/2013

                                  No. 12-50299

      We may authorize an appellant to proceed IFP on appeal if the appeal is
taken in good faith, i.e., if the appeal presents a nonfrivolous issue. See 28
U.S.C. § 1915(a)(1); Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). The
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,
707 F.2d at 220 (citation omitted).
      Guidry filed his notice of appeal on March 29, 2012, 56 days after the
district court denied his motions on February 2, 2012. Thus, if the proceedings
in the district court were criminal in nature, Guidry’s notice of appeal was
untimely, and if the proceeding were civil in nature, Guidry’s notice of appeal
was timely. See FED. R. APP. P. 4(a)(1)(B), (b)(1)(A). Guidry’s argument that his
notice of appeal was timely presents a nonfrivolous issue for appeal. See United
States v. Pugh, 426 F. App’x 876, 876 n.1 (11th Cir. 2011), cert. denied, 132 S. Ct.
1725 (2012). However, the merits of Guidry’s appeal do not.
      Section 3600 of Title 18 provides individuals under a federal sentence of
imprisonment with an opportunity to move for post-conviction DNA testing. The
court that entered the defendant’s judgment of conviction is to order DNA
testing of specified evidence if 10 prerequisites are met. See § 3600(a)(1)-(10).
One of the prerequisites provides that the applicant must show that “[t]he
proposed DNA testing of the specific evidence may produce new material
evidence that would . . . raise a reasonable probability that the applicant did not
commit the offense.” § 3600(a)(8). Section 14132(b)(3)(C) of Title 42 provides
that the federal DNA index shall include records only from entities including
federal, state, and local law enforcement agencies that store DNA information
and allow release of DNA information only for limited purposes including “for
criminal defense purposes, to a defendant, who shall have access to samples and
analyses performed in connection with the case in which such defendant is
charged.”



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    Case: 12-50299    Document: 00512149890    Page: 3     Date Filed: 02/20/2013

                                No. 12-50299

      Guidry asserts that the DNA testing he requested may produce new
evidence that would raise a reasonable probability that he did not sexually
assault Denise Limon. He maintains that the unknown DNA on Limon’s
clothing was from spermatozoa and that learning the identity of the person who
was the source of that DNA would prove that Limon had lied when she testified
that she had sex only with her fiancé and her assailant.
      Contrary to Guidry’s assertion, the record shows that the DNA from the
unknown individuals was not from sperm. Thus, it is not reasonably probable
that determining the identity of the unknown persons whose DNA was on
Limon’s clothing and in the patrol car would lead to the discovery of a person
who had sex with Limon and would contradict Limon’s testimony. The presence
of the DNA from unknown individuals was raised at trial, and Guidry has not
shown that any additional probative evidence would result from learning the
identities of the unknown individuals. The record shows that Guidry has not
shown grounds for obtaining DNA testing, and his appeal presents no
substantive nonfrivolous issues. See Howard, 707 F.2d at 220; United States v.
Martin, 377 F. App’x 395, 396 (5th Cir. 2010). Accordingly, Guidry’s motion for
leave to proceed IFP on appeal is denied, and the appeal is dismissed as
frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 5TH CIR.
R. 42.2.
      MOTION FOR LEAVE TO PROCEED IFP ON APPEAL DENIED;
APPEAL DISMISSED AS FRIVOLOUS.




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