Lechuga v. Dinsmore ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 28, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-51001
Summary Calendar
ANTHONY M. LECHUGA,
Petitioner-Appellant,
versus
ROBERT DINSMORE, Judge 120th District Court of Texas,
El Paso County, Texas,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CV-464-EP
--------------------
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Anthony M. Lechuga, Texas prisoner # 890614, has filed a
motion for leave to proceed in forma pauperis (“IFP”) in his
appeal of the district court’s dismissal of his petition for a
writ of mandamus for failure to state a claim and the dismissal
of his habeas claims without prejudice as unexhausted. Lechuga
argues that the district court erred in dismissing his habeas
*
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that this opinion should not be published and is not precedent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.
No. 02-51001
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claims for failure to exhaust his state court remedies because
the State of Texas unjustifiably delayed action on his state
habeas application and his state habeas application raised the
same claims as his federal habeas petition.
At the time the district court entered the order dismissing
Lechuga’s 28 U.S.C. § 2254 petition for failure to exhaust, the
district court was unaware that Lechuga’s state habeas
application had, in fact, already been denied. The district
court’s order was based on Lechuga’s own assertion that his state
application had not yet been ruled upon. Thus, the court had the
discretion to either dismiss the petition without prejudice or
hold the matter in abeyance pending the resolution of Lechuga’s
state habeas application. See Brewer v. Johnson, 139 F.3d 491,
493 (5th Cir. 1998). In light of the facts before the district
court at the time the order of dismissal was entered, Lechuga has
not shown that the district court erred in dismissing his 28
U.S.C. § 2254 petition without prejudice. See Great Plains
Equip., Inc. v. Koch Gathering Sys., Inc., 45 F.3d 962, 965 (5th
Cir. 1995).
To the extent that Lechuga’s brief could be construed as
arguing that the district court erred in denying his Rule 59(e)
motion, his claim is likewise without merit. The district
court’s decision not to conduct a de novo review of Lechuga’s
28 U.S.C. § 2254 petition was not unreasonable in light of the
fact that the court had dismissed his petition without prejudice
No. 02-51001
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to its refiling. St. Paul Mercury Ins. Co. v. Fair Grounds
Corp., 123 F.3d 336, 339 (5th Cir. 1997).
Because Lechuga has not shown that the district court erred
in certifying that an appeal would not be taken in good faith,
his motion to proceed IFP is DENIED, and his appeal is DISMISSED
as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th
Cir. 1997); 5TH CIR. R. 42.2.