Robert Martin v. David Crain , 652 F. App'x 272 ( 2016 )

Case: 15-50710 Document: 00513547049 Page: 1 Date Filed: 06/14/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-50710
Fifth Circuit
FILED
June 14, 2016
ROBERT LEE MARTIN, Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
HONORABLE DAVID CRAIN, Judge, 331st District Court, in his official
capacity,
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:15-CV-326
Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
Robert Lee Martin, Texas prisoner # 1050629, brought this 42 U.S.C.
§ 1983 action, alleging that Judge David Crain of the 331st District Court of
Travis County refuses to act on motions Martin filed to challenge his Texas
aggravated sexual assault conviction and life sentence. The sole relief that
Martin sought in the district court was a writ of mandamus ordering Crain to
rule on Martin’s motions. Concluding that it has no authority to issue such a
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50710 Document: 00513547049 Page: 2 Date Filed: 06/14/2016
No. 15-50710
writ, the district court dismissed the complaint as frivolous under 28 U.S.C.
§ 1915(e). Also, the district court concluded that Martin does not appeal in
good faith and therefore denied him permission to proceed in forma pauperis
(IFP) on appeal.
Martin seeks our permission to proceed IFP on appeal to question the
district court’s denial of IFP status and certification that his appeal is not in
good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C.
§ 1915(a)(3); FED. R. APP. P. 24(a)(3).
To proceed IFP, an appellant must first show that he is a pauper and
that he appeals in good faith, which means, that the appeal presents a
nonfrivolous issue. Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). An
appeal is frivolous if it “lacks an arguable basis in law or fact.” Taylor v.
Johnson, 257 F.3d 470, 472 (5th Cir. 2001). Martin does not show that his
appeal presents a nonfrivolous issue. See Moye v. Clerk, DeKalb County
Superior Court, 474 F.2d 1275 (5th Cir. 1973) (“[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 sought.”). Accordingly, his IFP motion is DENIED, and his appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202; 5TH CIR. R. 42.2.
Additionally, because he now has at least two strikes against him, Martin is
WARNED that three strikes will preclude him from proceeding IFP in any civil
action or appeal while he is incarcerated or detained in any facility unless he
“is under imminent danger of serious physical injury.” § 1915(g).
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