Curtis Sheppard, Jr. v. Texas Court of Criminal Appeal

Filing

UNPUBLISHED OPINION FILED. [14-10374 Affirmed ] Judge: TMR , Judge: JLD , Judge: LHS Mandate pull date is 08/28/2014 [14-10374]

Case: 14-10374

Document: 00512725726

Page: 1

Date Filed: 08/07/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10374
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
August 7, 2014
Lyle W. Cayce
Clerk

CURTIS LEE SHEPPARD, JR.,

Petitioner-Appellant
v.
TEXAS COURT OF CRIMINAL APPEALS,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:13-CV-62
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Curtis Lee Sheppard, Jr., Texas prisoner # 1656666, appeals the district
court’s dismissal of the instant suit without prejudice for want of prosecution.
Sheppard initiated the suit by filing a “Notice of Appeal” with the district court,
purportedly appealing the denial of a petition for a writ of mandamus by the
Texas Supreme Court.

The district court instructed Sheppard to file an

amended complaint using the court’s civil rights complaint form and to pay the

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-10374

Document: 00512725726

Page: 2

Date Filed: 08/07/2014

No. 14-10374
filing fee or move to proceed in forma pauperis. The court also warned that the
failure to comply with its order would result in the dismissal of the case.
Sheppard failed to comply with the district court’s order.
On appeal, Sheppard argues that the district court erred in dismissing
what he says was a petition for a writ of coram nobis. If the district court had
treated the “Notice of Appeal” as a petition for a writ of coram nobis, as
Sheppard suggests, or as a petition for a writ of mandamus, it could have
dismissed the suit with prejudice. See Sinclair v. State of La., 679 F.2d 513,
514 (5th Cir. 1982); Moye v. Clerk, DeKalb County Superior Court, 474 F.2d
1275, 1275-76 (5th Cir. 1973). Further, because the named defendant in the
instant case, the Texas Court of Criminal Appeals, did not have custody of
Sheppard, the suit did not sound in habeas. See 28 U.S.C. § 2254. The district
court nevertheless gave Sheppard a chance to restyle his suit as a civil rights
action, but he failed to do so.
For the foregoing reasons, Sheppard has not shown that the district court
abused its discretion in dismissing his suit without prejudice for want of
prosecution. See Larson v. Scott, 157 F.3d 1030, 1032 (5th Cir. 1998). The
district court’s judgment is AFFIRMED.

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