United States District Court, S.D. Texas, Houston Division
ORDER OF DISMISSAL
H. MILLER UNITED STATES DISTRICT JUDGE.
a state inmate proceeding pro se, files this section
1983 lawsuit against numerous defendants, including the Texas
Court of Criminal Appeals, state district court judges,
Harris County district attorneys, Harris County Sheriff's
Office deputies and investigators, Harris County forensic
employees, his court-appointed trial and appellate attorneys,
and Texas Department of Criminal Justice officials and
officers. His requested relief is singular: an order
mandating that these individuals and agencies produce and
tender evidence and information surrounding his 2014
convictions for aggravated kidnaping and aggravated sexual
threshold question is whether plaintiffs claims should be
allowed to proceed under 28 U.S.C. § 1915A. Finding that
no federal issue has been raised, the Court will dismiss this
lawsuit for failure to state a viable claim under section
Harris County jury found plaintiff guilty of aggravated
sexual assault and aggravated kidnaping in 2014. Punishment
was assessed at 75 years' imprisonment, enhanced by two
convictions. The complainant testified at trial that
plaintiff had kidnaped her and repeatedly assaulted her,
physically and sexually. Plaintiff had fled the scene, but
police found him hiding in a closet in his house. DNA
analysis of semen taken from the complainant revealed
plaintiff as the contributor. DNA results as to blankets,
clothing, and other items at the scene were non-inculpatory.
On direct appeal and state collateral review, plaintiff
argued that he was denied a speedy trial and that counsel
failed to raise speedy trial issues. His arguments were
unsuccessful. Plaintiffs section 2254 federal habeas
proceeding challenging the convictions is pending in this
Court. See Mount v, Davis, C.A. No.
H-16-3582 (S.D. Tex.). A review of that case shows that
plaintiffs motions seeking the same or similar relief as
requested here remain pending.
on-line records for the Harris County District Clerk's
Office show that, on May 23, 2016, plaintiff filed a pro
se motion with the state trial court seeking
postconviction DNA testing as to his aggravated sexual
assault conviction. See Tex. Code Crim. Proc. Art.
64.01, et seq. He subsequently filed a motion for
appointment of counsel. The motions remain pending with the
state trial court in State v. Mount, Cause No.
14491950 in the 248th District Court of Harris County, Texas.
claims in the instant section 1983 lawsuit that the
defendants denied him due process by disallowing access to
DNA and other physical evidence, a police car dash-cam
videotape, the "recorded evidence" of the
complainant and two other testifying witnesses, his own
recorded statements, his trial counsels' "work
product folders, " all documents and materials possessed
by appellate counsel, and "lab directed discovery"
from forensic experts. He requests that this Court order the
defendants to produce and tender these items. He further
requests that the Court order the Texas Court of Criminal
Appeals to "honor the DNA motion [he] sent them, "
and that Alan Curry be ordered "to give a reason why he
got fired from the Harris County District Attorney's
Office." It is plaintiff's position that the
requested evidence, information, and items would prove his
stand-alone request for the Court to compel the
above-specified actions is in the nature of mandamus.
"The common-law writ of mandamus, as codified in 28
U.S.C. § 1361, is intended to provide a remedy for a
plaintiff only if he has exhausted all other avenues of
relief and only if the defendant owes him a clear
nondiscretionary duty." Heckler v. Ringer, 466
U.S. 602, 616 (1984). Section 1361 provides that "[t]he
district courts shall have original jurisdiction of any
action in the nature of mandamus to compel an officer or
employee of the United States or any agency thereof to
perform a duty owed to the plaintiff." Federal courts
lack "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." Moye v. Clerk, Dekalb County Sup. Ct.,
474 F.2d 1275, 1275-76 (5th Cir. 1973).
defendants named in this lawsuit are not officers or
employees of the United States or any federal agency.
Consequently, this Court is without power to order the
defendants to turn over the requested evidence and items, and
plaintiffs request for mandamus relief must be dismissed as
frivolous. See Santee v. Quinlan, 115 F.3d 355, 357
(5th Cir. 1997) (affirming dismissal of petition for writ of
mandamus as frivolous because federal courts lack power to
mandamus state courts in the performance of their duties).
plaintiff's lawsuit fails to raise a viable claim for
which relief can be granted under section 1983. To merit
section 1983 relief, a plaintiff must show that there was a
violation of a right secured by the Constitution or laws of
the United States and that the deprivation was committed by a
person acting under the color of state law. Resident
Council of Allen Parkway Vill. v. HUD, 980 F.2d 1043,
1050 (5th Cir. 1993).
shows no violation of a federal law or right, as he enjoys no
free-standing federal constitutional right of post-conviction
access to the requested evidence, information, and items.
See District Attorney's Office for the Third Judicial
Dist. v. Osborne,557 U.S. 52, 67- 73 (2009). Nor does
the Constitution require that plaintiffs attorneys turn over
their work product files to him or that Galveston County
District Attorney Alan Curry provide plaintiff information
regarding his prior employment. Morever, plaintiff does not
claim that his attorneys were unable to access or otherwise
obtain the evidence, information, and items for their use at
trial and/or on appeal, and no constitutional denial of due
process has been raised. ...