Opinion
3:04-CV-0743-N.
June 17, 2004.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Statement of Case: Franklin is currently confined at the Lynaugh Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Fort Stockton, Texas, after having been convicted of the offense of aggravated sexual assault on or about December 3, 2003, in cause No. F-0222963-JK. He gave notice of appeal and his direct appeal is currently pending before the Fifth District Court of Appeals at Dallas. See Franklin v. State, 05-03-01824-CR. His pleading filed in this case styled as "motion to produce records" is liberally construed as a petition for writ of mandamus seeking an order compelling the state intermediate appellate court to produce records and exhibits from his criminal case for his personal review. No process has been issued in this case.
The only pleadings filed in this case are a "motion to produce records" and a motion for leave to proceed in form pauperis. Since his request is analogous to a mandamus action, which stems from a criminal proceedings, this action is not subject to the fee payment requirements under the Prison Litigation Reform Act (PLRA). Santee v. Quinlan, 115 F.3d 355, 357 (5th Cir. 1997) (petition for writ of mandamus that arose out of application for post-conviction relief was not subject to PLRA fee payment requirements).
Findings and Conclusions: The magistrate judge has permitted Petitioner to proceed in forma pauperis. His "motion" is, thus, subject to screening under 28 U.S.C. § 1915 and 1915A. § 1915(e)(2)(B)(i) provides in pertinent part as follows:
Notwithstanding any filing fee or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that — (B) the action . . . (i) is frivolous . . .See also § 1915A(a) and (b)(1).
Federal courts are without power to issue writs of mandamus against state officers in the performance of their duties where mandamus is the only relief sought. Moye v. Clerk, DeKalb County Sup. Court, 474 F.2d 1275 (5th Cir. 1973). Therefore, this court is without the authority and jurisdiction to require either the state convicting court or the intermediate appellate court to provide Franklin with access to state court records from his aggravated sexual assault conviction. Accordingly, this action construed as a petition for writ of mandamus, should be dismissed with prejudice, the same being frivolous RECOMMENDATION:
Parenthetically the court notes that Franklin is currently represented by counsel in his direct appeal. See Franklin v. State, No. 05-03-01824-CR, http://www.courtstuff.com/FILES /05/03/05031824.HTM (Docket Sheet information generated on June 11, 2004). A convicted defendant is not entitled to have access to the appellate record himself where he is represented by counsel.
For the foregoing reasons, it is recommended that Petitioner's pleadings, construed as a petition for writ of mandamus, be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(i).
The Clerk is directed to correct the spelling of Petitioner's name on the docket sheet.
A copy of this recommendation will be mailed to Petitioner's Rahman Abdul Franklin, #1208661, TDCJ, Lynaugh Unit, 1098 S. Hwy, 2037, Fort Stockton, Texas 79735.