Neuman v. Blackwell , 204 F. App'x 348 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 24, 2006
Charles R. Fulbruge III
Clerk
No. 06-50093
Conference Calendar
KENNETH LANE NEUMAN,
Plaintiff-Appellant,
versus
THOMAS D. BLACKWELL, Honorable; MIKE LYNCH, Honorable,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:05-CV-996
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Kenneth Lane Neuman, Texas prisoner # 758440, appeals from
the district court’s order dismissing, without prejudice, his pro
se application for a writ of mandamus. In his application,
Neuman urged the court to order a Texas state judge, Mike Lynch,
to direct the Texas state judge who presided over Neuman’s 1998
criminal trial, Thomas Blackwell, to vacate Neuman’s conviction
and sentence, based on the allegation that Judge Blackwell had
not taken the oath of office required by Texas law.
*
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this opinion should not be published and is not precedent except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. 06-50093
-2-
The district court correctly concluded that it lacked the
general power to issue a writ of mandamus to direct a state
judicial officer in the performance of his duties when mandamus
is the only relief sought. See Moye v. Clerk, DeKalb County
Superior Court, 474 F.2d 1275, 1275-76 (5th Cir. 1973); Noble v.
Cain, 123 F. App’x 151, 152-53 (5th Cir. 2005) (citing Moye).
The court also correctly noted that Neuman had already filed one
unsuccessful 28 U.S.C. § 2254 application in the district court
and, in this court, an unsuccessful motion for authorization to
file a successive § 2254 application. Contrary to Neuman’s
suggestion, the All Writs Act, 28 U.S.C. § 1651(a), does not
provide an independent basis for mandamus jurisdiction. See In
re Grand Jury Proceedings, 724 F.2d 1157, 1160 (5th Cir. 1984).
Neuman’s unauthorized mandamus application amounted only to
an effort to avoid statutory restrictions to filing successive
collateral attacks upon convictions and sentences. The appeal is
without arguable merit, is frivolous, and is therefore dismissed.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR.
R. 42.2. Because Neuman has raised the oath-of-office claim in
prior attempts to avoid such statutory restrictions, he is hereby
warned that any future filings of frivolous pleadings may subject
him to sanctions, which may include monetary sanctions or
restrictions on filing further pleadings, or both.
APPEAL DISMISSED; SANCTION WARNING ISSUED.