### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 13-10170 Summary Calendar

REGINALD DALE PETERS, Plaintiff-Appellant

v. TEXAS COURT OF CRIMINAL APPEALS, Defendant-Appellee

Appeal from the United States District Court f or the Northern District of Texas USDC No. 2:12-CV-246

Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges. PER CURIAM: 1 Reginald Dale P eters, Texas prisoner # 1361704, filed a pro se pleading

e n t i t l e d “Notice o f Appeal on Motion for Leave t o File Original Application f o r Writ of Mandamus,” complaining that the Texas Court of C riminal Appeals (TCCA) had unconstitutionally denied his writ of mandamus, through which he had sought to h av e t h e state trial court clerk o rdered to return his original habeas corpus application and all attached documents, along with a written admonishment of the defects in the application. The district court, construing U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Novem ber 19, 2013 Ly l e W . Cayce Clerk

1 Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 13-10170 Document: 00512446428 Page: 1 Date Filed: 11/19/2013No. 13-10170

the pleading a s either a Petition for Writ o f Mandamus or a complaint pursuant to 42 U.S.C. § 1983, dismissed the a c tion without prejudice for failure to state

a claim. Peters thereafter filed a motion through which he purportedly sought to correct clerical e rrors in his original complaint. The district court construed the motion as a motion for new trial or t o amend or alter the judgment pursuant t o F e d e ral Rule o f Civil Procedure 59 and denied it. Peters now appeals the dismissal of his original complaint and the denial of his post-judgment motion. He also contends that the district court should have granted him leave to amend his complaint. After a n independent review of the record, we agree with the district court that although Peters attempts to couch his complaint in terms of acivil action alleging violations of his constitutional rights, the o nly remedy he seeks against the T CCA is in the nature of mandamus relief. Federal courts, however, do not have the authority to direct a s tate court’s actions under the circumstances alleged by Peters. See Moye v. Clerk, DeKalb County Superior Court , 474 F.2d 1275, 127 5

- 7 6 ( 5 t h C ir. 1973); 28 U.S.C. § 1 361. Moreover, “litigants may not obtain review of s t ate court actions by filing c omplaints about those actions in lower federal courts cast in the form o f civil rights suits.” Hale v. Harney , 786 F.2d 688, 690-91 ( 5th C ir. 1986). Accordingly, w e agree that P eters failed to plead facts sufficient to state a claim for relief that was plausible on its face. See In re Katrina Canal Breaches Litigation , 495 F.3d 191, 205 (5th Cir. 2007). Also without merit is Peters’s challenge to the denial of his p ost-judgment motion, which he contends should h av e b e en construed as a motion filed pursuant to Federal Rule of Civil Procedure 60, rather than Rule 59

. This challenge, however, is based on the flawed c o ntention that a m o tion for reconsideration must be filed within 1 0 days of the entry o f judgment f or it to be consid e red p ursuant to Rule 59. Here, Peters’s post-judgment motion was submitted for f

iling within 28 days of the entry of the judgment of dismissal and hence was timely filed u n der Rule 59. See F E D
. R. C I V
. P. 5 9(b). Aside from the
2 Case: 13-10170 Document: 00512446428 Page: 2 Date Filed: 11/19/2013No. 13-10170

foregoing contention, Peters makes no argument that the district court erred in denying his post-judgment motion, regardless o f whether he filed it pursuant to Rule 59 or Rule 60. He therefore has abandoned any argument regarding that ruling. See Y

ohey v. C

oll i n s , 9 8 5 F.2d 222, 2 25 (5th C ir. 1993); B rinkmann v. Dallas County Deputy Sheriff Abner , 813 F.2d 744, 748 (5th Cir. 1987). Further, the district court did not err i n d ismissing Peters’s c o mplaint without giving him the opportunity to amend. I n general, a district court errs if it dismisses a complaint for failure t o state a claim without giving the plaintiff “notice of the court’s intention to dismiss his suit o r an opportunity to amend his complaint.” Bazrowx v. Scott , 136 F.3d 1053, 1054 (5th Cir. 1998). Even so, we have held that any such e rror “may be ameliorated

. . . if t he dismissal was without prejudice ,” as is the case here. Id . (emphasis added). AFFIRMED.

3 Case: 13-10170 Document: 00512446428 Page: 3 Date Filed: 11/19/2013