Summary
finding that the federal district court properly construed the following as a mandamus petition: petitioner's request to order the state's highest court to, in turn, order the state trial court to “file his postconviction application and brief that it had refused to file ....”
Summary of this case from Stepp v. TewOpinion
No. 13-10620
12-16-2013
OLIN RAY NOWLIN, Petitioner-Appellant v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee
Summary Calendar
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CV-28
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges. PER CURIAM:
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Olin Ray Nowlin, Texas prisoner # 824386, appeals the district court's dismissal of his petition for writ of mandamus, in which Nowlin asked the district court to compel the Texas Court of Criminal Appeals to order the state trial court to file his state postconviction application and brief that it had refused to file in June 2012. Nowlin's assertions that he was not seeking mandamus relief, that the district court should have construed his petition as a 28 U.S.C. § 2254 petition, and that the district court should have filed and considered his mandamus petition as part of case number 4:04-CV-949-Y based on newly discovered evidence are frivolous.
The appeal is without arguable merit and is DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR. R. 42.2. Nowlin is WARNED that any future frivolous filings in this court or any court subject to this court's jurisdiction will subject him to sanctions.