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 Although petitioner filed this action pursuant to 28 U.S.C. §§ 2241 and 2254, he seeks no habeas relief in this action.

Instead, he seeks to compel the State of Texas to stay his state habeas proceedings and to order the Court of Criminal

Appeals to dismiss all filings by the 196th District Court of Hunt County, Texas, that were filed in violation of a

September 3, 2003 order of the Court of Criminal Appeals. (See Pet. at 6.) Petitioner thus seeks mandamus relief. 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CARL DEAN KING, ID # 1056119, )

Petitioner, )

vs. ) No. 3:05-CV-0050-B

)

STATE OF TEXAS, )

Respondent. )

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 implementation 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:

I. BACKGROUND

A. Nature of the Case: This is a petition for writ of mandamus filed by a state prisoner.

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B. Parties: Petitioner, a state inmate, names the State of Texas as respondent. 

C. Procedural History: On January 6, 2005, the Court received the instant petition. Petitioner seeks an order to compel respondent to stay his state habeas proceedings and to order the

Court of Criminal Appeals to dismiss certain filings by the 196th District Court of Hunt County,

Texas. On March 2, 2005, petitioner paid the filing fee in this action. No process has been issued

in this case. 

 

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II. PRELIMINARY SCREENING

As a prisoner seeking redress from a governmental entity, petitioner’s writ 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). That section provides forsua sponte dismissal if the Court finds the complaint “frivolous”

or “malicious,” if it “fails to state a claim upon which relief may be granted,” or if it “seeks monetary

relief against a defendant who is immune from such relief.” 

A complaint is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v.

Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is “based on an

indisputably meritless legal theory.” Id. at 327. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id. at 327-28. 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). 

III. MANDAMUS

“The common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide

a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant

owes him a clear nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616 (1984). Section 1361

provides that “[t]he district courts shall have original jurisdiction of any action in the nature of

mandamus to compel an officer or employee of the United States or any agency thereof to perform

a duty owed to the plaintiff.” Under this section, the Court may only compel federal actors or

agencies to act. This Court lacks “the general power to issue writs of mandamus to direct state courts

 

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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, 1275-76 (5th Cir. 1973). 

Section 1361 grants no jurisdiction to this Court to dictate action by state judicial officers

or courts. This Court is therefore without power to grant the relief requested by petitioner. Consequently, the instant petition lacks an arguable basis in law and should be dismissed with prejudice

as frivolous pursuant to 28 U.S.C. § 1915A(b). 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). 

IV. 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.

§ 1915A(b). 

SIGNED this 21st day of March, 2005.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must file and serve

written objections within ten (10) days after being served with a copy. A party filing objections must

specifically identify those findings, conclusions or recommendation to which objections are being

made. The District Court need not consider frivolous, conclusory or general objections. Failure to

file written objections to the proposed findings, conclusions and recommendation within ten days

after being served with a copy shall bar the aggrieved party from appealing the factual findings and

legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon

grounds of plain error. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)

(en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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