We need not address the question of whether a constructive termination is actionable under the PMPA; in this case, Diamond Shamrock's actions did not breach any obligation it owed April Marketing and thus cannot provide the basis for a termination claim under the PMPA. In McGinnis v. Star Enter., No. 93-1234, 8 F.3d 20 (December 21, 1993) (unpublished), a franchisee brought suit against a franchisor alleging that the franchisor had constructively terminated a franchise in violation of the PMPA along with causes of action for breach of contract, violation of the Texas Deceptive Practices Act, and antitrust violations. The majority of the court's opinion focused on the effect of a release between the parties, which had resolved a previous dispute.

The April Marketing court's skepticism of the constructive termination claim was evidenced, first, by that court's refusal to reach the issue of the existence of that claim. Second, the April Marketing panel cited and gave a detailed discussion of an unpublished decision in McGinnis v. Star Enter., No. 93-1234, 8 F.3d 20 (Oct. 21, 1993), in which another Fifth Circuit panel declined to definitively decide the issue of the existence of a constructive termination claim. Therefore, April Marketing does not determine the legal issue before this Court, and the Court will analyze the matter afresh.

Gosch v. Collins, No. SA-93-CA-731 (WD Tex., Sept. 15, 1993). The Court of Appeals for the Fifth Circuit affirmed, Gosch v. Collins, 8 F.3d 20 (1993), cert. dism'd sub nom. Gosch v. Scott, post, p. 1216. Gosch then filed a subsequent, substantive habeas petition, which the District Court dismissed as successive and abusive.

Nor has any district court within the Fourth Circuit. Instead, a number of courts have taken the same approach as the district court here, treating § 922(q) offenses as felonies for sentencing purposes. See, e.g., United States v. Nieves-Castano, 480 F.3d 597, 599 (1st Cir. 2007) (§ 922(q) offender sentenced to three-year term of supervised release); United States v. Handy, 8 F.3d 20, 1993 WL 455551 (5th Cir. 1993) (unpublished table decision) (same); Hough v. United States, No. 3:13-cv-143-FDW, 2015 WL 127881, at *1 (W.D.N.C. Jan. 8, 2015) (unpublished) (same). That the government's understanding of § 922(q) appears to have been adopted by a handful of courts - without any analysis, we note - does not mean that it is correct.

Distrib. Corp. v. Diamond Shamrock Ref. Mktg. Co., 103 F.3d 28, 29 (5th Cir. 1997) ("This circuit has not recognized a cause of action for `constructive termination' under the PMPA."). However, in McGinnis v. Star Enter., No. 93-1234, 8 F.3d 20 (October 21, 1993) (unpublished), the Court held that "the plain meaning of the [PMPA] does not provide for `constructive termination.'" Id. at 9.

We have reversed other convictions against defendants who had pleaded guilty to charges brought under the Gun Free School Zones Act. See United States v. Handy, 8 F.3d 20 (5th Cir. 1993) (unpublished). We have done so for the well-established reason that a guilty plea does not waive the right of the defendant to challenge the constitutionality of the statute under which he is convicted.

We have reversed other convictions against defendants who had pleaded guilty to charges brought under the Gun Free School Zones Act. See United States v. Handy, 8 F.3d 20 (5th Cir. 1993) (unpublished). We have done so for the well-established reason that a guilty plea does not waive the right of the defendant to challenge the constitutionality of the statute under which he is convicted.

Plaintiff does not allege his incoming mail was censored or that this alleged inspection affected his ability to prepare or transmit necessary legal documents. See Brewer, 3 F.3d at 825; Smith v. Stewart, 8 F.3d 20 (5th Cir. 1993); Corbett v. Aransas Cnty., No. 2:23-CV-00111, 2024 WL 195962, at *4 (S.D. Tex. Jan. 18, 2024). Thus, Plaintiff does not allege his right to access to the courts was in any way infringed.

Bradberry v. Jefferson Cty., 732 F.3d 540, 548 (5th Cir. 2013) (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.4 (1979)). In Bailes v. U.S., 8 F.3d 20 (5th Cir. 1993), a federal court held in a first suit that a prisoner-plaintiff failed to exhaust administrative remedies. The Bailes court held that the plaintiff was collaterally estopped from bringing a second federal suit claiming that prison officials prevented him from exhausting his remedies:

See Local Civil Rule 72.2(a)(4) (authority over IFP applications, except to deny pending consent). Compare Tripati v. Rison, 847 F.2d 548 (9th Cir.1988) (no authority to deny IFP) with Bailes v. United States, 8 F.3d 20 (5th Cir. 1993) (authority to grant). Because the undersigned concludes Plaintiff's Application should be denied, the undersigned proceeds by way of Report and Recommendation.