Patton v. Machado ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50349
Conference Calendar
JOHN W. PATTON,
Plaintiff-Appellant,
versus
MIKE M. MACHADO,
Judge,
Defendant-Appellee.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-96-CV-195
- - - - - - - - - -
December 11, 1996
Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
John W. Patton requested the district court to issue a writ
of mandamus ordering a state-court judge to take certain action
in Patton’s state-court probation-revocation proceeding.
“[A] federal court lacks 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
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 96-50349
- 2 -
sought.” Moye v. Clerk, De Kalb County Superior Court, 474 F.2d
1275, 1276 (5th Cir. 1973). Thus, the district court did not
have the authority to grant Patton‘s petition for the issuance of
a writ of mandamus to the state court judge.
Patton argues for the first time on appeal that his petition
should be construed as a request for habeas relief seeking the
reversal of the 99-year sentence imposed on Patton by the state
court judge for a probation violation. Patton has not
demonstrated that he has exhausted his state court remedies with
respect to the state court’s imposition of the 99-year sentence.
See Rose v. Lundy, 455 U.S. 509, 519 (1982). Therefore, even if
it is presumed that Patton’s petition could be construed as a
habeas petition, the failure to grant such petition would not be
error, plain or otherwise. See United States v. Calverley, 37
F.3d 160, 162-64 (5th Cir. 1994) (en banc), cert. denied, 115 S.
Ct. 1266 (1995).
Patton argues that the district court erred in denying his
motion to recuse the magistrate judge. Because Patton failed to
appeal the magistrate judge’s order denying the motion to recuse
to the district court, this court has no jurisdiction to consider
the ruling. See Boren v. N.L. Industries, Inc., 889 F.2d 1463,
1465 (5th Cir. 1989), cert. denied, 497 U.S. 1029 (5th Cir.
1990).
This appeal is frivolous. It is DISMISSED. 5th Cir. R.
42.2.
No. 96-50349
- 3 -
We caution Patton that any additional frivolous appeals
filed by him will invite the imposition of sanctions. To avoid
sanctions, Patton is further cautioned to review all pending
appeals to ensure that they do not raise arguments that are
frivolous because they have been previously decided by this
court.
DISMISSED; SANCTION WARNING ISSUED.