Christopher Emerson v. Rissie Owen


UNPUBLISHED OPINION FILED. [11-51220 Dismissed as Frivolous] Judge: EMG , Judge: LHS , Judge: CH Mandate pull date is 07/23/2012 [11-51220]

Download PDF
Case: 11-51220 Document: 00511907309 Page: 1 Date Filed: 07/02/2012 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 11-51220 Summary Calendar July 2, 2012 Lyle W. Cayce Clerk CHRISTOPHER J. EMERSON, Petitioner-Appellant v. RISSIE OWENS, Chairperson/Board of Pardons and Paroles (Texas), Respondent-Appellee Appeal from the United States District Court for the Western District of Texas USDC No. 1:11-CV-941 Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges. PER CURIAM:* Christopher J. Emerson, Texas prisoner # 451863, appeals the district court’s order dismissing, without prejudice, his pro se petition for writ of mandamus. In his petition, Emerson sought to compel the Texas Board of Pardons and Paroles (TBPP) to conduct a new revocation hearing in compliance with the due process requirements set forth in Morrissey v. Brewer, 408 U.S. 471 (1972), and asserted that it is likely that his parole was revoked in retaliation for his exercise of his First Amendment rights and not because he violated a law * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 11-51220 Document: 00511907309 Page: 2 Date Filed: 07/02/2012 No. 11-51220 or a condition of release. Regardless of Emerson’s arguments, a federal district court is not authorized to grant relief in the nature of mandamus relief to direct state officials in the performance of their duties and functions. See Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275, 1275-76 (5th Cir. 1973). Emerson seeks through this appeal to continue to challenge the Southern District’s denial of his § 2254 petition that challenged the same revocation proceedings on the same grounds. For this reason and for the reasons stated above, the appeal is without arguable merit and is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly, the appeal is dismissed. See 5TH CIR. R. 42.2. Emerson is warned that the filing of further frivolous pleadings or of any pleadings in this court or in any court in this jurisdiction challenging the 2009 revocation proceedings may result in the imposition of sanctions, which may include monetary penalties or restrictions on Emerson’s ability to file further pleadings, or both. APPEAL DISMISSED; SANCTION WARNING ISSUED. 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?