Sanders v. Itawamba County et al

Filing 46

ORDER of UNITED STATES COURT OF APPEALS denying Petition for Writ of Mandamus. Signed on 8/20/18. (jla)

Case: 18-60296

Document: 00514607256

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Date Filed: 08/20/2018

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 18-60296

In re: DAVID SANDERS,

A True Copy
Certified order issued Aug 20, 2018

Petitioner.

Clerk, U.S. Court of Appeals, Fifth Circuit

Petition for a Writ of Mandamus
to the United States District Court
for the Northern District of Mississippi

Before SMITH, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM:
David Sanders, Mississippi prisoner # K8558, has filed in this court a
pro se petition for writ of mandamus and a motion requesting leave to file his
mandamus petition in forma pauperis. The motion for leave to proceed in
forma pauperis is GRANTED.
Sanders filed a 28 U.S.C. § 2254 application challenging his conviction
of possession of contraband (tobacco) in a prison facility, and the magistrate
judge noted that Sanders may be actually innocent of the offense because
tobacco is not listed as contraband under the relevant Mississippi statute.
Before the mandamus petition was filed, however, the district court dismissed
Sanders’s § 2254 application without prejudice for failure to exhaust state

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No. 18-60296
remedies.
In his petition, Sanders maintains that the state trial court has refused
to file his state motion for post-conviction relief. He generally requests help
from this court, and he specifically seeks vacatur of his conviction and release
from prison. He names Itawamba County, Mississippi, as the respondent, and
he certifies that he served the district attorney, the state trial judge, and the
Attorney General of Mississippi with the petition. Sanders does not expressly
challenge the dismissal of his § 2254 application, nor did he file a notice of
appeal from that dismissal.
The mandamus remedy is an extraordinary one, which we grant only in
the clearest, most compelling cases. A party seeking mandamus relief must
show both that he has no other adequate means for achieving the requested
relief and that he has a clear and indisputable right to mandamus relief. In re
Willy, 831 F.2d 545, 549 (5th Cir. 1987).
The All Writs Act, 28 U.S.C. § 1651(a), grants us authority only to “issue
all writs necessary or appropriate in aid of [our] jurisdiction.” § 1651(a); see In
re McBryde, 117 F.3d 208, 220 (5th Cir. 1997). “The traditional use of the writ
in aid of appellate jurisdiction . . . has been to confine an inferior court to a
lawful exercise of its prescribed jurisdiction or to compel it to exercise its
authority when it is its duty to do so.” Roche v. Evaporated Milk Ass’n, 319 U.S.
21, 26 (1943). Sanders does not identify any district court action that would
be a basis for the exercise of this authority. Nor does our mandamus authority
extend to directing state officials in the performance of their duties and functions. Cf. Moye v. Clerk, DeKalb Cty. Superior Court, 474 F.2d 1275, 1275−76
(5th Cir. 1973) (holding that federal courts lack “the general power to issue
writs of mandamus to direct state courts and their judicial officers in the
performance of their duties where mandamus is the only relief sought”).
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To the extent Sanders seeks habeas corpus relief from us, we decline to
grant it. Sanders has failed to establish a ground for us to exercise such
authority. Although 28 U.S.C. § 2241(a) provides that “[w]rits of habeas corpus
may be granted by the Supreme Court, any justice thereof, the district courts
and any circuit judge within their respective jurisdictions,” other changes to
the habeas corpus laws wrought by the Antiterrorism and Effective Death
Penalty Act of 1996 cast doubt on whether circuit judges still possess the
authority to entertain an original habeas corpus petition under § 2241. See
Felker v. Turpin, 518 U.S. 651, 660-61 & n.3 (1996). Under our precedent, any
such authority rests in the hands of individual circuit judges, not the court of
appeals itself. See Zimmerman v. Spears, 565 F.2d 310, 316 (5th Cir. 1977).
Each member of this panel declines to exercise original jurisdiction remaining
in individual circuit judges. See Zimmerman, 565 F.2d at 316.
The petition for a writ of mandamus is DENIED.

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Document: 00514607262

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Date Filed: 08/20/2018

United States Court of Appeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE
CLERK

TEL. [phone]
600 S. MAESTRI PLACE
NEW ORLEANS, LA 70130

August 20, 2018

Mr. David Crews
Northern District of Mississippi, Aberdeen
United States District Court
301 W. Commerce Street
Aberdeen, MS 39730
No. 18-60296

In re: David Sanders
USDC No. 1:16-CV-142

Dear Mr. Crews,
Enclosed is a copy of the judgment issued as the mandate.

Sincerely,
LYLE W. CAYCE, Clerk

By: _________________________
Monica R. Washington, Deputy Clerk
504-310-7705
cc w/encl:

Mr. David Sanders