Jack Carr v. Michael McConnell ( 2015 )

Case: 15-30212 Document: 00513299615 Page: 1 Date Filed: 12/08/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-30212 FILED
December 8, 2015
Lyle W. Cayce
JACK RAY CARR, Clerk
Plaintiff-Appellant
v.
MICHAEL L. MCCONNELL, Clerk,
Defendant-Appellee
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:14-CV-753
Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Jack Ray Carr, federal prisoner # 05895-095, moves this court for leave
to proceed in forma pauperis (IFP) in the appeal from the denial of his petition
and amended petition for a writ of mandamus and the district court’s
certification that the appeal was not taken in good faith. Carr sought
mandamus relief as a means to obtain copies of grand jury selection records
and records of the grand jury proceedings, pursuant to 28 U.S.C. § 1868.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 15-30212
By moving to proceed IFP in this court, Carr is challenging the district
court’s certification that his appeal is not in good faith. See Baugh v. Taylor,
117 F.3d 197, 199-200 (5th Cir. 1997). This court’s inquiry “is limited to
whether the appeal involves legal points arguable on their merits (and
therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(internal quotation marks and citation omitted).
Carr challenges the district court’s determination that he was not
entitled to mandamus relief, arguing that his right to relief under § 1868 was
clear. Mandamus “is an extraordinary remedy for extraordinary causes.” In
re Corrugated Container Antitrust Litig. v. Mead Corp., 614 F.2d 958, 961-62
(5th Cir. 1980) (internal quotation marks and citation omitted). To obtain the
writ, the petitioner must show “that no other adequate means exist to obtain
the requested relief and that his right to the issuance of the writ is clear and
indisputable.” In re: Willy, 831 F.2d 545, 549 (5th Cir. 1987). The issuance of
the writ is in the court’s discretion. See United States v. Denson, 603 F.2d 1143,
1146 (5th Cir. 1979).
Section 1868 provides for the maintenance and inspection of jury
selection records. See § 1868. That statute requires that any records and
papers “compiled and maintained by the jury commission or clerk before the
master wheel was emptied shall be preserved in the custody of the clerk for
four years . . . and shall be available for public inspection for the purpose of
determining the validity of the selection of any jury.” § 1868. Members of the
public do not need a court order to inspect jury records, provided they do so “for
the purpose of determining the validity of the selection of any jury.” United
States v. Montelongo, 582 F. App’x 404, 405-06 (5th Cir. 2014) (internal
quotation marks and citation omitted). However, while § 1868 allows for
inspection of jury selection records by the general public, it does not establish
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No. 15-30212
any entitlement to copy or reproduce those documents. See § 1868; see also
Montelongo, 582 F. App’x at 405.
In this case, the clerk of court provided Carr with copies of 23 summonses
issued to the grand jurors, despite not being obligated to do so. Carr’s
communications with the clerk and his amended petition for a writ of
mandamus establish that he was not seeking to challenge the grand jury
selection process. Rather, he sought information regarding how the
proceedings were conducted, including identification of witnesses, transcripts
of testimony, legal instructions, and the vote count. Carr has not demonstrated
that he had a clear and indisputable right to the issuance of the writ of
mandamus. See In re: Willy, 831 F.2d at 549. The district court therefore did
not abuse its discretion by denying his petition. Denson, 603 F.2d at 1146.
In addition, Carr seeks to challenge an order, issued by the Chief Judge
of the district, memorializing the decision of all of the judges and magistrate
judges of the district to recuse themselves from hearing Carr’s case and the
subsequent assignment of the case to a judge in another district. Carr has not
shown that the judges’ decisions were in any way improper.
Carr has failed to show that his appeal involves “legal points arguable
on their merits (and therefore not frivolous).” Howard, 707 F.2d at 220
(internal quotation marks and citation omitted). Accordingly, his motion for
leave to proceed IFP on appeal should be denied, and his appeal should be
dismissed as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
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