Stewart Cross v. Rick Thaler, Director

Filing

UNPUBLISHED OPINION FILED. [10-10539 Affirmed ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 12/13/2010 [10-10539]

Stewart Cross v. Rick ase: 10-10539 CThaler, Director

Document: 00511300795 Page: 1 Date Filed: 11/22/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-10539 S u m m a r y Calendar November 22, 2010 Lyle W. Cayce Clerk

S T E W A R T AZELL CROSS, P e titio n e r-A p p e lla n t v. R IC K THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, C O R R E C T I O N A L INSTITUTIONS DIVISION, R e s p o n d e n t -A p p e lle e

A p p e a ls from the United States District Court fo r the Northern District of Texas U S D C No. 3:10-CV-403

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* S t e w a r t Azell Cross, Texas prisoner # 1089282, appeals the district court's d is m is s a l of his mandamus petition pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). He a r g u e s that the federal courts should order the state appellate court to provide c o p ie s of his trial records and transcripts so that he may use them to prepare a s t a t e postconviction application. Cross also raises the merits of various

c o n s t it u t io n a l claims relating to his aggravated assault conviction and

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 10-10539 Document: 00511300795 Page: 2 Date Filed: 11/22/2010 No. 10-10539 r e v o c a t io n proceeding and contends that he could establish his entitlement to r e lie f on these allegations if he were given access to the trial records. We review t h e district court's dismissal for abuse of discretion. See Siglar v. Hightower, 112 F .3 d 191, 193 (5th Cir. 1997). C r o s s has not established that the district court abused its discretion in d e n y in g the requested relief. "[A] federal court lacks the general power to issue w r i t s of mandamus to direct state courts and their judicial officers in the p e r fo r m a n c e of their duties where mandamus is the only relief sought." Moye v . Clerk, DeKalb County Superior Court, 474 F.2d 1275, 1275-76 (5th Cir. 1973). The district court therefore lacked the authority to compel either the respondent o r a state court to loan Cross the desired records, regardless of the potential m e r it of the constitutional claims Cross wishes to raise in postconviction p r o c e e d in g s . See id. at 1276; Santee v. Quinlan, 115 F.3d 355, 356-57 (5th Cir. 1 9 9 7 ). Consequently, the judgment of the district court is AFFIRMED.

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