     Case: 12-10561       Document: 00512139658         Page: 1     Date Filed: 02/08/2013




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

                                                                            FILED
                                                                         February 8, 2013
                                     No. 12-10561
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARK JULIAN EDMONDS,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:02-CV-2132
                             USDC No. 3:98-CR-370-1


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Mark Julian Edmonds moves for leave to proceed in forma pauperis (IFP)
in appealing the dismissal of his motion for relief from judgment under Federal
Rule of Civil Procedure 60(b), challenging the district court’s prior resolution of
his 28 U.S.C. § 2255 claim of a speedy trial violation and asserting that this
court committed fraud when denying him a certificate of appealability (COA) to
appeal that denial. By moving to proceed IFP, Edmonds is challenging the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10561     Document: 00512139658       Page: 2   Date Filed: 02/08/2013

                                   No. 12-10561

district court’s certification that his appeal is not taken in good faith. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      He briefs no argument challenging the district court’s conclusion that,
inasmuch as his Rule 60 motion sought to invalidate this court’s November 2005
denial of COA, it lacked jurisdiction.       Edmonds has therefore waived the
argument. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999). Although
Edmonds challenges the alternative construction of his Rule 60 motion as a
successive § 2255 motion, to the extent that he sought to challenge the district
court’s previous denial of his speedy-trial claim on the merits, the district court’s
construction of the motion as successive was correct, and its alternative
dismissal for lack of jurisdiction because such motion was unauthorized was
proper. See Gonzalez v. Crosby, 545 U.S. 524, 532 (2005); 28 U.S.C. § 2255(h);
see also United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000).
      Whether the district court failed to provide Edmonds with a copy of the
magistrate judge’s report and the opportunity to respond need not be resolved.
Edmonds has not identified any factual dispute or legal contention that he could
have raised in the district court that would have prevented dismissal, so any
error was harmless. See Braxton v. Estelle, 641 F.2d 392, 396 (5th Cir. 1981).
      Edmonds identifies no nonfrivolous issue for appeal. A COA is DENIED.
See Slack v. McDaniel, 529 U.S. 473, 484 (2000). The motion for leave to appeal
IFP is DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117
F.3d at 202 & n.24; Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR.
R. 42.2.




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