Opinion
Civil Action 3:21-CV-2311-S-BK
11-30-2021
EDDY JAMES HOWARD, ID No. 01859038 v. DIRECTOR, TDCJ-CID
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The United States Magistrate Judge made findings, conclusions, and a recommendation in this case (“FCR”) [ECF No. 7]. Petitioner filed a Notice of Right to Appeal/Amend [ECF No. 8]. Liberally construed, Petitioner objects to the FCR and seeks leave to amend his original petition for writ of mandamus to include a Memorandum of Law that he submitted in support of his petition for writ of habeas corpus in state court.
Petitioner's request to amend his petition for writ of mandamus to include the Memorandum of Law filed in his state habeas case GRANTED.
The District Court reviewed de novo those portions of the FCR to which objections were made and reviewed the remaining portions of the FCR for plain error. Finding no error, the Court ACCEPTS the Findings, Conclusions, and Recommendation of the United States Magistrate Judge.
Petitioner filed a petition for writ of mandamus to compel the state court to respond to his state writs and requests. As set forth in the FCR, federal courts lack the power to issue writs of mandamus against state officers in the performance of their duties. As such, Petitioner's claims lack an arguable legal basis, and will be DISMISSED WITH PREJUDICE as frivolous and for failure to state a claim. 1
The Court prospectively CERTIFIES that any appeal of this action would not be taken in good faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). In support of this certification, the Court adopts and incorporates by reference the FCR. See Baugh v. Taylor, 117 F.3d 197, 202 and n.21 (5th Cir. 1997). Based on the FCR, the Court finds that any appeal of this action would present no legal point of arguable merit and would, therefore, be frivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (per curiam). In the event of an appeal, Petitioner may challenge this certification by filing a separate motion to proceed in forma pauperis on appeal with the Clerk of the Court, U.S. Court of Appeals for the Fifth Circuit. SeeBaugh, 117 F.3dat202; Fed. R. App. P. 24(a)(5).
Federal Rule of Appellate Procedure 4(a) governs the time to appeal an order. A timely notice of appeal must be filed even if the district court certifies an appeal as not taken in good faith.
SO ORDERED. 2