     Case: 12-50792       Document: 00512274654         Page: 1     Date Filed: 06/14/2013




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

                                                                            FILED
                                                                           June 14, 2013
                                     No. 12-50792
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOHN MICHAEL SHERWOOD,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 4:08-CV-28


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       John Michael Sherwood, federal prisoner # 92334-024, moves for leave to
proceed in forma pauperis (IFP) on appeal of the district court’s denial of his
motion to reopen the appeal period pursuant to Rule 4(a)(6) of the Federal Rules
of Appellate Procedure. He argues that the district court abused its discretion
in denying his motion because he met all of the requirements of Rule 4(a)(6). He
asserts that he was transferred to the Winkler County Jail in Kermit, Texas,
after the magistrate judge issued a writ of habeas corpus ad testificandum so

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50792     Document: 00512274654      Page: 2   Date Filed: 06/14/2013

                                  No. 12-50792

that he could attend an evidentiary hearing, that he was not served with a copy
of the judgment at either his previous address in Illinois or at the jail in Texas,
and that the docket sheet did not reflect that the judgment was served on him
as required by Federal Rule of Civil Procedure 77(d)(1). Sherwood also contends
that the clerk of court sent a copy of the judgment to the attorney appointed to
represent him only at the evidentiary hearing and that the attorney failed to
give him notice of the judgment or file a notice of appeal on his behalf.
      Because Rule 4(a)(6) is permissive and compliance with Rule 4(a)(6) does
not require the district court to grant the motion, we review the district court’s
denial of the motion for an abuse of discretion. See In re Jones, 970 F.2d 36, 39
(5th Cir. 1992). Given the totality of the circumstances, we discern no abuse of
discretion. Sherwood did not submit proper notice of a change of address to the
district court when he was transferred to Texas, even though he had properly
changed his address on two previous occasions; the district court also found that
he was properly served when the clerk of court sent notice of the judgment to the
most recent address that he provided. See Davis v. King, 270 F. App’x 355, 356
(5th Cir. 2008); Hurdsman v. Wackenhut Corrections Corp., 218 F.3d 744 (5th
Cir. 2000). Because the district court’s denial of Sherwood’s motion does not rise
to the level of an abuse of discretion, Sherwood has not shown that there is a
nonfrivolous issue for appeal. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997); Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his
motion for leave to proceed IFP on appeal is DENIED and the appeal is
DISMISSED AS FRIVOLOUS. See 5TH CIR. R. 42.2. Because Sherwood has not
shown that he will raise a substantial question on appeal or that he has a
particular need for the transcript, his motion for a transcript of the evidentiary
hearing at Government expense is also DENIED. See 28 U.S.C. § 753(f); see
Harvey v. Andrist, 754 F.2d 569, 571 (5th Cir. 1985).




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