Opinion
No. 3:04-CV-2240-P.
October 29, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), implemented by an Order of the Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS :
Nature of case: Petitioner this petition pursuant to 28 U.S.C. § 2241. As discussed below, the Court construes the petition as a petition for mandamus.
Parties: Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division. Respondent is Douglas Dretke, Director of the Texas Department of Criminal Justice, Correctional Institutions Division. No process has issued in this case.
Procedural History : Petitioner requests that this Court order the state courts "to reverse theor (sic) decision claiming petitioners (sic) Art. 5 Sec. 8 writ is denied w/out written opinion as an `Abuse' under Sec. 11.044." (Pet. p. 3). Petitioner also requests that this Court order the state courts to litigate his claims on the merits and appoint him counsel. Petitioner states he does not seek reversal of his conviction. (Pet. p. 2). He challenges his conviction in a previously filed petition for habeas relief. See Gaines v. Dretke, 3:04-CV-1185-D (filed June 1, 2004). That petition is currently pending.
Discussion:
As a prisoner seeking redress from an officer or employee of a governmental entity, petitioner's complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). Section 1915A provides for sua sponte dismissal if the Court finds the complaint frivolous or if the complaint fails to state a claim upon which relief may be granted. A claim is frivolous if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Smith v. Winter, 782 F.2d 508, 511-12 (5th Cir. 1986).
Petitioner filed this petition pursuant to 28 U.S.C. § 2241. Section 2241, however, is used to challenge the manner in which a sentence is executed. See Warren v. Miles, 230 F.3d 688, 694 (5th Cir. 2000). Petitioner does challenge the execution of his sentence. He instead seeks to have this Court order the state courts to take specific actions.
Federal courts lack "the general power to issue writs of mandamus to direct state courts and their judicial officers in the performance of their duties where mandamus is the only relief sought." Moye v. Clerk, Dekalb County Sup. Ct., 474 F.2d 1275, 1276 (5th Cir. 1973). In this case, Petitioner seeks only mandamus relief against Respondent. This Court is without power to enter such an order. The petition therefore lacks an arguable basis in law and should be dismissed with prejudice as frivolous pursuant to 1915A(b)(1). See Santee v. Quinlan, 115 F.3d 355, 357 (5th Cir. 1997) (affirming dismissal of petition for writ of mandamus as frivolous because federal courts lack the power to mandamus state courts in the performance of their duties).
RECOMMENDATION:
For the foregoing reasons, the Court recommends that the petition be dismissed with prejudice as frivolous under 28 U.S.C. § 1915A(b).