Raymond Fierro v. Jack Robison ( 2010 )

Case: 10-50025 Document: 00511332428 Page: 1 Date Filed: 12/27/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 27, 2010
No.10-50025
Summary Calendar Lyle W. Cayce
Clerk
RAYMOND J. FIERRO,
Plaintiff-Appellant
v.
JACK ROBISON; ERNEST WAYNE FLORES; DIB WALDRIP; KATHY H.
FAULKNER,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:09-CV-980
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Raymond J. Fierro, Texas prisoner # 1295462, appeals
the dismissal of his “complaint” in federal common law against the trial judge
in his criminal trial, the district attorney, the court reporter, and the clerk of
court. He alleged that the state officials falsified the appellate record in his
conviction for three counts of injury to a child in violation of First, Fifth, Sixth,
Seventh, Eighth, and Fourteenth Amendments, as well as 18 U.S.C. §§ 1001 and
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-50025 Document: 00511332428 Page: 2 Date Filed: 12/27/2010
No. 10-50025
1018. The district court dismissed the complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i)-(ii) and § 1915A(b)(1) insofar as it was a 42 U.S.C. § 1983 civil
rights action and alternatively pursuant to 28 U.S.C. § 2244(b)(3)(A) as
unauthorized successive 28 U.S.C. § 2254 application. Fierro has filed a motion
for leave to proceed in forma pauperis (IFP) on appeal, challenging the district
court’s denial of IFP status and certification that his appeal would not be taken
in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 1915(a)(3);
F ED. R. A PP. P. 24(a)(3).
Fierro insists that his “complaint” does not arise under § 1983 or § 2254
but rather is a “jury trial demand complaint” in which he demands “his inviolate
Seventh Amendment right based on the criminal version of § 1983 which is Title
18 U.S.C. § 240, 241.” Federal courts are courts of limited jurisdiction. United
States v. Hazelwood, 526 F.3d 862, 863 (5th Cir. 2008). Fierro’s invocation of
constitutional amendments are directed at his efforts to have the results of his
application for state and federal habeas relief invalidated by the alleged
negligence/criminality of these state officers. The Seventh Amendment question
he raises in his complaint is purely incidental to those efforts and does not
provide a basis for subject matter jurisdiction. See Johnston v. Byrd, 354 F.3d
982, 984 (5th Cir. 1965).
Fierro’s claim that his complaint arises under the “criminal version of
§ 1983” and cites 18 U.S.C. § 241 (which criminalizes conspiracy against the free
exercise of a constitutional right), is unavailing. The criminal statutes on which
Fierro relies do not supply a private cause of action. See Cort v. Ash, 422 U.S.
66, 79 (1975).
Fierro’s appeal is without merit and is therefore frivolous. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983). The motion to proceed IFP is
DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at202 & n.24; 5 TH C IR. R. 42.2.
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