Juan Calderon v. State of Florida, et al

Filing

UNPUBLISHED OPINION FILED. [10-60455 Affirmed] Judge: EHJ , Judge: JES , Judge: EBC. Mandate pull date is 02/14/2011 [10-60455]

Juan Calderon v. State ofeFlorida, et al Cas : 10-60455

Document: 00511331131 Page: 1 Date Filed: 12/23/2010

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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 . 10-60455 S u m m a r y Calendar December 23, 2010 Lyle W. Cayce Clerk

J U A N CALDERON, P e titio n e r-A p p e lla n t v. S T A T E OF FLORIDA; BILL MCCOLLUM, State Attorney General; DAVA J. T U M S , Circuit Judge, R e s p o n d e n t s - A p p e lle e s

A p p e a l from the United States District Court fo r the Southern District of Mississippi U S D C No. 5:10-CV-68

B e fo r e JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges. P E R CURIAM:* J u a n Calderon, federal prisoner # 38672-060, appeals from the district c o u r t's dismissal of his petition invoking 28 U.S.C. § 2241. The district court r e c h a r a c t e r iz e d Calderon's petition as a petition for a writ of mandamus because C a ld e r o n was requesting that the district court issue an order directing a Florida s t a t e court in the performance of its duties. Because Calderon did not challenge t h e manner in which his federal sentence was being executed, the district court

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

*

Dockets.Justia.com

Case: 10-60455 Document: 00511331131 Page: 2 Date Filed: 12/23/2010 No. 10-60455 d id not err in recharacterizing Calderon's § 2241 petition as a petition for a writ o f mandamus. See Warren v. Miles, 230 F.3d 688, 694 (5th Cir. 2000) ("Section 2 2 4 1 . . . is the proper habeas remedy for challenging the execution of a s e n te n c e ." ). Nor did the district court err in dismissing it. See Moye v. Clerk, De K a lb County Superior Court, 474 F.2d 1275, 1275-76 (5th Cir. 1973) ("[A] federal c o u r t lacks the general power to issue writs of mandamus to direct state courts a n d their judicial officers in the performance of their duties where mandamus is the only relief sought."). C a ld e r o n 's request that we vacate and remand for an evidentiary hearing is DENIED. To the extent that Calderon requests mandamus relief from this c o u r t, the request also is DENIED. AFFIRMED.

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