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

                                                 FILED
                                                                         November 12, 2009
                                     No. 08-51197
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ELMER MARTIN SORRELL,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:02-CR-106-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       In 2002, Elmer Martin Sorrell, federal prisoner # 28618-180, was convicted
of bank robbery, and he was sentenced to 180 months of imprisonment. He
previously sought and was denied 28 U.S.C. § 2255 relief. In 2008, Sorrell filed
a motion to dismiss his bank robbery conviction, arguing that the district court
lacked jurisdiction to prosecute him for the offense. The district court denied his
motion on the merits. Sorrell appealed and sought leave from the district court
to proceed in forma pauperis (IFP) on appeal. The district court denied IFP

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-51197

status after determining that Sorrell’s appeal was frivolous and not taken in
good faith within the meaning of 28 U.S.C. § 1915(a)(3).
      Sorrell has filed a motion for leave to proceed IFP with this court. He has
also filed a motion for the appointment of counsel. Sorrell has failed to raise any
nonfrivolous issues for appeal. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997) (civil case); United States v. Boutwell, 896 F.2d 884, 889-90 (5th Cir. 1990)
(one-judge order) (criminal case). As Sorrell has failed to demonstrate that his
appeal is in good faith, this court could dismiss the appeal on the merits. See
Baugh, 117 F.3d at 202, n. 24; Boutwell, 896 F.2d at 889.
      However, this court must examine the basis of its jurisdiction sua sponte
if necessary. See Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003); Mosley v.
Cozby, 813 F.2d 659, 660 (5th Cir. 1987). Sorrell’s motion to dismiss for lack of
jurisdiction was actually a successive § 2255 motion, which the district court was
without jurisdiction to consider absent this court’s prior permission. See 28
U.S.C. § 2244(b)(3)(A); Crone, 324 F.3d at 836-38. Where a district court acts
without jurisdiction and improperly analyzes a successive § 2255 motion that
was filed without this court’s permission, this court’s jurisdiction extends not to
the merits, but to correct the error of the district court in its consideration of the
motion. See Crone, 324 F.3d 837-38.
      Accordingly, the judgment of the district court is VACATED and this case
is REMANDED to the district court with instructions to dismiss for lack of
jurisdiction. Sorrell’s motion to proceed IFP and his motion for the appointment
of counsel are DENIED.
      VACATED and REMANDED; MOTIONS DENIED.




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