Shamblin v. Owens

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 14, 1999
• Docket: 99-3245
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 14 1999

TENTH CIRCUIT PATRICK FISHER Clerk

GEORGE A. SHAMBLIN,

Petitioner-Appellant,

v. No. 99-3245 (D.C. No. 99-3077-GTV) CLARK V. OWENS, Judge of (Kansas) Sedgwick County District Court; GARY L. WILSON, El Dorado Correctional Facility,

Respondents-Appellees.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. George A. Shamblin, a state prisoner, brought a pro se petition for a writ of

mandamus to compel a state court judge to approve transcripts Mr. Shamblin

contends he needs to pursue an appeal of his state conviction. Mr. Shamblin also

sought timely rulings on future motions, a copy of his presentence evaluation, and

access to his correctional records. The district court dismissed the petition,

holding that it had no authority to issue a writ of mandamus to a state judge, a

state department of corrections, or a prison warden. Mr. Shamblin appeals,

contending that the district court erred by not construing his petition liberally, by

holding that it was without jurisdiction, and by denying him relief. We affirm.

We agree with Mr. Shamblin that because we construe pro se complaints

liberally, the fact that federal courts have no jurisdiction to issue writs of

mandamus to state judges or prison officials is not dispositive. See Olson v. Hart,

965 F.2d 940, 942 (10th Cir. 1992) (construing pro se petition for writ of

mandamus as both habeas petition and civil rights complaint). Accordingly, we

characterize the complaint as one arising under 28 U.S.C. § 1983 and asserting

denial of access to the courts. Nonetheless, we conclude that dismissal is proper

here because Mr. Shamblin has failed to state a constitutional claim for relief.

Mr. Shamblin is currently represented by appointed counsel in the direct

appeal of his state conviction. The record reveals assurances from the state court

judge that all the necessary transcripts will be provided to that counsel. Although

-2- Mr. Shamblin makes the conclusory statement in his brief on appeal that he needs

the material he seeks to assist his attorney in the preparation of a meaningful

appeal, he has offered no evidence to support that assertion. Absent any showing

that Mr. Shamblin’s failure to obtain the transcript and other material he requests

has affected his right to pursue a meaningful appeal through appointed counsel,

he has failed to state a constitutional deprivation.

Accordingly, the dismissal of Mr. Shamblin’s petition is AFFIRMED.

Judge Baldock concurs in the result.

ENTERED FOR THE COURT

Stephanie K. Seymour Chief Judge

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