Summary Calendar UNITED STATES OF AMERICA v. Leon Lamont Bailey

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-51433
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
LEON LAMONT BAILEY
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:99-CR-16-ALL
Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Leon Lamont Bailey, federal prisoner # 91815-080, pleaded guilty,
pursuant to a written plea agreement, to possession of a firearm by a convicted
felon and was sentenced to 110 months of imprisonment. Bailey moves for leave
to proceed in forma pauperis (IFP) on appeal from the district court’s denial of
his pro se “Nunc Pro Tunc Motion for Amended Sentence for Concurrency, and
Amended Judgment for Concurrency.” The district court denied Bailey leave to
United States Court of Appeals
Fifth Circuit
F I L E D
February 19, 2008
Charles R. Fulbruge III
Clerk

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proceed IFP on appeal certifying that the appeal was not taken in good faith.
See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
By moving for leave to proceed IFP, Bailey is challenging the district
court’s certification that the appeal is not taken in good faith. See Baugh,
117 F.3d at 202. In his IFP motion, Bailey argues that the district court
misapplied U.S.S.G. § 5G1.3(b) by failing to order that his federal sentence run
concurrently with his state sentence for burglary. Bailey also contends that trial
counsel was ineffective for failing to request that his federal sentence run
concurrently with his state sentence. Bailey further asserts that the district
court erred by failing to construe his nunc pro tunc motion as a 28 U.S.C. § 2255
motion.
As federal courts are courts of limited jurisdiction, Bailey must have
statutory authority for the filing of his motion. Veldhoen v. United States Coast
Guard, 35 F.3d 222, 225 (5th Cir. 1998). Although 18 U.S.C. § 3582(c) allows a
district court to modify a sentence under certain narrow circumstances, none of
those circumstances are applicable to Bailey’s motion. See § 3582(c). Bailey also
is precluded from obtaining relief under 18 U.S.C. § 3742, as relief thereunder
is reserved only for direct appeals. See § 3742. Bailey’s motion on it face was
therefore unauthorized, and the district court was without jurisdiction to
entertain it. See United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994).
The district court could have construed the motion as arising under § 2255,
but it did not do so, and any error by the district court is harmless. Bailey’s
claim that the district court misapplied the Sentencing Guidelines is not
cognizable in a § 2255 motion. See United States v. Williams, 183 F.3d 458, 462
(5th Cir. 1998). Bailey’s claim of ineffective assistance of counsel, raised nearly
six years after his conviction became final, would be untimely. § 2255. Although
the one year limitation period may be equitably tolled in “rare and exceptional
circumstances,” see Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000)
(internal quotation marks and citation omitted), Bailey fails to allege any

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circumstance so rare and exceptional as to justify his failure to seek relief for
approximately six years. See Coleman v. Johnson, 184 F.3d 398, 402-03 (5th Cir.
1999).
As Bailey has failed to allege an arguably meritorious ground for appeal,
his IFP motion is DENIED, and his appeal is DISMISSED as frivolous. See
Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
IFP MOTION DENIED; APPEAL DISMISSED.

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