Ross v. State of Texas , 89 F. App'x 900 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 16, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41448
Summary Calendar
CHARLES ROSS,
Petitioner-Appellant,
versus
STATE OF TEXAS,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
(6:03-CV-312)
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Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
Following a jury trial, Petitioner-Appellant Charles Ross,
Texas prisoner number 768284, was convicted of aggravated sexual
assault of a child and sentenced to 99 years in prison. He
unsuccessfully sought permission from the trial court to proceed in
forma pauperis (IFP) on appeal, as well as other benefits
associated with IFP status. He challenged the propriety of the
trial court’s denial of his request for IFP status and concomitant
benefits in several proceedings in state and federal courts. His
*
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this opinion should not be published and is not precedent except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.
latest challenge was presented to the district court in an
application for mandamus relief. The district court denied this
application, and Ross appeals.
On appeal Ross seeks authorization to file excess record
excerpts. His motion, which is best construed as one seeking to
supplement the record on appeal, is GRANTED. Ross also seeks leave
to file a supplemental brief. This motion is DENIED.
Ross argues that his constitutional rights were violated when
he was denied IFP status and concomitant benefits. He has not
shown that his circumstances are extraordinary. See In re American
Marine Holding Co., 14 F.3d 276, 277 (5th Cir. 1994). Neither has
he established that the relief he seeks flows from a non-
discretionary duty of the defendant. See Heckler v. Ringer, 466
U.S. 602, 616 (1984). Ross thus has not shown that the district
court abused its discretion in denying his request for mandamus
relief. See United States v. Denson, 603 F.2d 1143, 1146 (5th Cir.
1979) (en banc). His conclusional assertion of actual innocence
does not mandate a different result.
Ross also contends that his rights were violated when his case
was heard by a magistrate judge because he did not consent thereto
in accordance with 28 U.S.C. § 636(c). Ross is factually mistaken:
His case was not adjudicated to a final judgment by a magistrate
judge. Rather, the magistrate judge issued a report and
recommendation concerning Ross’s mandamus application; it was the
district judge who entered the final judgment dismissing Ross’s
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application. Ross has not shown that his rights were violated by
the magistrate judge’s involvement in the district court
proceedings. As Ross has shown no error in the district court’s
judgment, it is AFFIRMED.
The instant proceeding is just the latest of Ross’s multiple
attempts to obtain review of an issue that has already been
rejected by several state and federal courts. As he has received
substantial review of this meritless issue and shows no signs of
ceasing his relentless pursuit, Ross is WARNED that he could, and
likely would, be sanctioned if he should file any additional
pleadings challenging the state trial court’s denial of his request
for IFP status and concomitant benefits. See Coughlan v. Starkey,
852 F.2d 806, 817 (5th Cir. 1988); Farguson v. MBank Houston, N.A.,
808 F.2d 358, 359 (5th Cir. 1986).
MOTION TO FILE EXCESS RECORD EXCERPTS GRANTED; MOTION TO FILE
SUPPLEMENTAL BRIEF DENIED; JUDGMENT AFFIRMED; SANCTIONS WARNING
ISSUED.
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