Curtis Sheppard, Jr. v. Texas Court of Criminal Ap

Fifth Circuit

Curtis Sheppard, Jr. v. Texas Court of Criminal Ap

577 F. App'x 298

CourtCourt of Appeals for the Fifth Circuit

DecidedAugust 7, 2014

Docket14-10374

StatusUnpublished

This text of 577 F. App'x 298 (Curtis Sheppard, Jr. v. Texas Court of Criminal Ap) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Curtis Sheppard, Jr. v. Texas Court of Criminal Ap, 577 F. App'x 298 (5th Cir. 2014).

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Opinion

PER CURIAM: *

Curtis Lee Sheppard, Jr., Texas prisoner # 1656666, appeals the district court’s dismissal of the instant suit without prejudice for want of prosecution. Sheppard initiated the suit by filing a “Notice of Appeal” with the district court, purportedly appealing the denial of a petition for a writ of mandamus by the Texas Supreme Court. The district court instructed Sheppard to file an amended complaint using the court’s civil rights complaint form and to pay the filing fee or move to proceed in *299 forma pauperis. The court also warned that the failure to comply with its order would result in the dismissal of the case. Sheppard failed to comply with the district court’s order.

On appeal, Sheppard argues that the district court erred in dismissing what he says was a petition for a writ of coram nobis. If the district court had treated the “Notice of Appeal” as a petition for a writ of coram nobis, as Sheppard suggests, or as a petition for a writ of mandamus, it could have dismissed the suit with prejudice. See Sinclair v. State of La., 679 F.2d 513, 514 (5th Cir.1982); Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275, 1275-76 (5th Cir.1973). Further, because the named defendant in the instant case, the Texas Court of Criminal Appeals, did not have custody of Sheppard, the suit did not sound in habeas. See 28 U.S.C. § 2254. The district court nevertheless gave Sheppard a chance to restyle his suit as a civil rights action, but he failed to do so.

For the foregoing reasons, Sheppard has not shown that the district court abused its discretion in dismissing his suit without prejudice for want of prosecution. See Larson v. Scott, 157 F.3d 1030, 1032 (5th Cir.1998). The district court’s judgment is AFFIRMED.

*

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.

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PER CURIAM: *

Curtis Lee Sheppard, Jr., Texas prisoner # 1656666, appeals the district court’s dismissal of the instant suit without prejudice for want of prosecution. Sheppard initiated the suit by filing a “Notice of Appeal” with the district court, purportedly appealing the denial of a petition for a writ of mandamus by the Texas Supreme Court. The district court instructed Sheppard to file an amended complaint using the court’s civil rights complaint form and to pay the filing fee or move to proceed in *299 forma pauperis. The court also warned that the failure to comply with its order would result in the dismissal of the case. Sheppard failed to comply with the district court’s order.

On appeal, Sheppard argues that the district court erred in dismissing what he says was a petition for a writ of coram nobis. If the district court had treated the “Notice of Appeal” as a petition for a writ of coram nobis, as Sheppard suggests, or as a petition for a writ of mandamus, it could have dismissed the suit with prejudice. See Sinclair v. State of La., 679 F.2d 513, 514 (5th Cir.1982); Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275, 1275-76 (5th Cir.1973). Further, because the named defendant in the instant case, the Texas Court of Criminal Appeals, did not have custody of Sheppard, the suit did not sound in habeas. See 28 U.S.C. § 2254. The district court nevertheless gave Sheppard a chance to restyle his suit as a civil rights action, but he failed to do so.

For the foregoing reasons, Sheppard has not shown that the district court abused its discretion in dismissing his suit without prejudice for want of prosecution. See Larson v. Scott, 157 F.3d 1030, 1032 (5th Cir.1998). The district court’s judgment is AFFIRMED.

*

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.

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577 F. App'x 298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/curtis-sheppard-jr-v-texas-court-of-criminal-ap-ca5-2014.

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