     Case: 11-51254     Document: 00511995061         Page: 1     Date Filed: 09/21/2012




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

                                                                            FILED
                                                                        September 21, 2012
                                     No. 11-51254
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

KEITH GREGORY WILSON,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                              USDC No. 6:06-CR-40-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Keith Gregory Wilson moves for leave to proceed in forma pauperis (IFP)
in appealing the dismissal of his motions for a new trial under Federal Rule of
Criminal Procedure 33 and for relief from judgment under Federal Rule of Civil
Procedure 60(b). His motions were based on allegedly new evidence that a
policeman involved in his case was later fired for payroll fraud.
        The district court properly construed the Rule 60 motion as a successive
and unauthorized motion under 28 U.S.C. § 2255. See United States v. Rich, 141

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51254   Document: 00511995061      Page: 2   Date Filed: 09/21/2012

                                 No. 11-51254

F.3d 550, 552-53 (5th Cir. 1998). Regardless of whether the Rule 33 motion also
was in substance a successive and unauthorized § 2255 motion, the district court
did not err by denying the motion where Wilson offered only impeachment
evidence, unrelated to his case, that was unlikely to have resulted in acquittal.
See United States v. Reedy, 304 F.3d 358, 372 (5th Cir. 2002) (stating the
requirements for a valid Rule 33 motion); cf. United States v. Evans, 224 F.3d
670, 672 (7th Cir. 2000) (holding that a Rule 33 motion that fits the description
of § 2255(a) is a § 2255 motion although “a genuine claim of newly discovered
evidence tending to show innocence is not”).
      Wilson 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 v. Taylor,
117 F.3d 197, 202 & n.24 (5th Cir. 1997); Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983); 5TH CIR. R. 42.2.




                                       2
