Opinion
NO. 3-04-CV-2390-M.
January 6, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Pierro Jackson, appearing pro se, has filed an application for writ of mandamus pursuant to 28 U.S.C. § 1361. For the reasons stated herein, this case should be summarily dismissed as frivolous.
I.
Petitioner was convicted by a jury of unlawful possession of cocaine and sentenced to 25 years confinement. His conviction and sentence were affirmed on direct appeal. Jackson v. State, No. 11-03-00104-CR (Tex.App.-Eastland, Jul. 15, 2004). The Texas Court of Criminal Appeals refused a petition for discretionary review. Jackson v. State, No. 1485-04 (Tex.Crim.App. Dec. 30, 2004). Petitioner also sought mandamus relief in state court. His application was denied without written order. Ex parte Jackson, No. 59,990-01 (Tex.Crim.App. Sept. 22, 2004).
On November 5, 2004, while his petition for discretionary review was still pending, petitioner filed the instant mandamus proceeding in federal district court. Although the precise nature of his claim is difficult to decipher, it appears that petitioner seeks an order compelling the state court to set aside his drug conviction and grant him a new trial.
II.
A district court may dismiss a complaint filed in forma pauperis if it concludes that the action is frivolous or malicious. 28 U.S.C. § 1915(e)(2). An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint is without an arguable basis in law if it is grounded upon an untenable or discredited legal theory. Neitzke, 109 S.Ct. at 1831. A claim may be deemed to lack an arguable basis in fact only if it is based upon factual allegations that are clearly fanciful or delusional in nature. Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).Petitioner seeks an order compelling a Texas state court to grant him a new trial in his criminal case. However, a federal court cannot direct a state court or judicial officer to perform an official act where mandamus is the only relief sought. See Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275, 1276 (5th Cir. 1973), citing Lamar v. 118th Judicial District Court, 440 F.2d 383 (5th Cir. 1971); Bagley v. Francis, 2002 WL 311040 at *1 (N.D. Tex. Oct. 7, 2002). The court therefore concludes that this claim is without an arguable basis in law and should be summarily dismissed. See Santee v. Quinlan, 115 F.3d 355, 357 (5th Cir. 1997) (affirming dismissal of mandamus petition as frivolous because federal courts lack power to compel state courts in the performance of their duties).
To the extent petitioner attempts to challenge his underlying conviction, his complaint must be construed as an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Jackson v. Torres, 720 F.2d 877, 879 (5th Cir. 1983). However, the court takes judicial notice that petitioner has not exhausted his state court remedies. Petitioner did not argue his entitlement to a new trial on direct appeal. Nor has he filed an application for state post-conviction relief pursuant to Tex. Code Crim. Proc. Ann. art. 11.07. Although petitioner presented this claim to the Texas Court of Criminal Appeals in a writ of mandamus, such a proceeding is not a proper method of exhaustion. See Nurnberg v. Dretke, 2004 WL 1267103 at *2 (N.D. Tex. Jun. 9, 2004), citing Carter v. Estelle, 677 F.2d 427, 443 n. 11 (5th Cir. 1982), cert. denied, 103 S.Ct. 1508 (1983).
RECOMMENDATION
Petitioner's complaint should be summarily dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2).