Opinion
No. 3:01-CV-2665-D
February 15, 2002
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 Court in implementadon thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
I. Background Nature of the Case: This is a petition for writ of mandamus filed by a state inmate.
Parties: Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division. Respondent is Faith Johnson, Texas State Judge. No process has been issued in this case.
Procedural History: On December 17, 2001, petitioner filed the instant petition for writ of mandamus. He wants the Court to order Judge Johnson to vacate her orders of judgment and convictions in both of petitioner's state criminal cases.
II. Screening for Frivolity
The Court has permitted plaintiff to proceed in forma pauperis. His complaint is thus subject to sua sponte dismissal under 28 U.S.C. § 1915(e)(2). As a prisoner seeking redress from an officer or employee of a governmental entity, plaintiff's complaint is also subject to preliminary screening pursuant to 28 U.S.C. § 1915A regardless of whether he proceeds in forma pauperis. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998), cert. denied, 527 U.S. 1041 (1999). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal, if the Court finds the complaint "frivolous" or if it "fails to state a claim upon which relief may be granted." A claim is frivolous, if it "lacks an arguable basis either in law or in 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 which 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); Henrise v. Horvath, 94 F. Supp.2d 768, 769 (N.D. Tex. 2000).
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). A review of the instant petition reveals that petitioner seeks only mandamus relief to compel Judge Johnson to vacate his state sentences. In the absence of a successful habeas petition filed pursuant to 28 U.S.C. § 2241 et seq., this Court is without power to order petitioner's state sentences vacated. The instant petition thus 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).
III. Construing Petition as Seeking Habeas Relief
When appropriate, federal courts treat a petition for writ of mandamus as a petition for writ of habeas corpus. See Davis v. Fechtel, 150 F.3d 486, 486 (5th Cir. 1998) (construing mandamus petition as a section 2241 petition); Russell v. Knight, 488 F.2d 96, 97 (5th Cir. 1973) (construing mandamus petition as a section 2254 habeas petition). In this instance, petitioner seeks mandamus to compel a State Judge to vacate two state sentences and convictions. Such relief may be had through a writ of habeas corpus. In this instance, however, the Court need not construe the action as one arising under 28 U.S.C. § 2254. Petitioner currently has a § 2254 action pending in this Court in which he attacks the same state convictions that he challenges in the instant petition for mandamus. Compare Oneal v. Johnson, No. 3:01-CV-2665-D (filed in December 2001) with O'Neil v. Cockrell, No. 3:01-CV-0964-G (filed in May 2001). The Court thus finds it inappropriate to construe the instant petition for mandamus relief as a petition arising out of 28 U.S.C. § 2254.
The Court notes that petitioner spells his name "Oneal" in the present action while the § 2254 action has "O'Neil" on the front page of the § 2254 petition. The signature on the § 2254 petition, nevertheless, shows "Oneal" as the petitioner. The Court finds the two actions filed by the same person. Both actions, furthermore, attack the same state convictions.
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the instant petition for writ of mandamus be DISMISSED with prejudice as frivolous under 28 U.S.C. § 1915(e)(2) and 1915A(b).