Nabelek v. Cockrell ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20913
Summary Calendar
IVO NABELEK,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CV-4181
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January 30, 2003
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ivo Nabelek (“Nabelek”), Texas state prisoner #669748,
appeals the district court’s dismissal of his writ of mandamus
petition for lack of jurisdiction. Because his claims are not
cognizable for habeas review, Nabelek’s request for a certificate
of appealability (COA) is DENIED AS UNNECESSARY.
Nabelek argues that under 28 U.S.C. § 1651, the district
court has jurisdiction to order Texas prison officials to provide
him with free copies of documents and a box for mailing those
*
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that this opinion should not be published and is not precedent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. 02-20913
-2-
copies. Title 28, Section 1651(a) is not an independent grant of
jurisdiction; it authorizes a court to issue commands necessary
to effectuate orders it has previously issued “‘in its exercise
of jurisdiction otherwise obtained.’” Texas v. Real Parties In
Interest, 259 F.3d 387, 392 (5th Cir. 2001) (citation omitted)
(emphasis added), cert. denied, 534 U.S. 1115 (2002); Clinton
v. Goldsmith, 526 U.S. 529, 534-35 (1999). Mandamus jurisdiction
is conferred only when the defendant officer, employee, or agency
owes a specific, non-discretionary duty to the plaintiff.
Kirkland Masonry, Inc. v. Comm’r of Internal Revenue, 614 F.2d
532, 534 (5th Cir. 1980). Nabelek has not provided authority for
his contention that he has a right to free copies or a box to aid
him in refiling his 28 U.S.C. § 2254 petition. Moreover, our
mandamus authority does not extend to state officials, and
therefore we cannot grant Nabelek any relief with respect to
prison officials. Cf. Moye v. Clerk, DeKalb County Superior
Court, 474 F.2d 1275, 1276 (5th Cir. 1973) (federal courts lack
authority to “issue writs of mandamus to direct state courts and
their judicial officers in the performance of their duties”).
The district court did not err in dismissing Nabelek’s
mandamus petition because the court lacked authority to issue a
writ of mandamus providing the relief requested. Nabelek’s
appeal presents no issue of arguable merit and is, therefore,
dismissed as frivolous. See 5TH CIR. R. 42.2.
COA DENIED AS UNNECESSARY; APPEAL DISMISSED AS FRIVOLOUS.