Billizone v. Louisiana

MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

The above-captioned petition for writ of mandamus previously came before the Court pursuant to Local Rule 72.1(B)(1) for a determination of pauper status under 28 U.S.C. §1915. The pertinent portions of the latter statute direct that a court shall dismiss a case at any time if it is determined that the action is frivolous or malicious or fails to state a claim upon which relief can be granted. 28 U.S.C. §1915(e)(2)(B)(i) and (ii).

Ernest Billizone, Sr., Petitioner herein, is a state prisoner who is presently incarcerated at the Winn Correctional Center, Winnfield, Louisiana. (Rec. doc. 1). By way of his present petition for mandamus, Billizone seeks an order of this Court directing the Louisiana Supreme Court to act upon a petition for writ of habeas corpus that he reportedly filed with that tribunal on December 28, 2016. (Id.).

The sole relief requested by Petitioner in the instant matter is the nature of mandamus. On that score, the law is clear that federal courts possess no general mandamus powers to direct state courts and their judicial officers in the performance of their duties where mandamus is the only relief sought. See Santee v. Quinlan, 115 F.3d 355, 357 (5 Cir. 1997); Russell v. Knight, 488 F.2d 96 (5 Cir. 1973); Moye v. Clerk, DeKalb County Superior Court, 474 2d 1275 (5 Cir. 1973); Lamar v. 118 Judicial District Court of Texas, 440 F.2d 383 (5 Cir. 1971); Haggard v. State of Tennessee, 421 F.2d 1384 (6 Cir. 1970). In light of these clear authorities, it will therefore be recommended that Billizone's petition for writ of mandamus be dismissed as frivolous and for failing to state a claim upon which relief can be granted.

For the foregoing reasons, it is recommended that Billizone's petition for writ of mandamus be dismissed as frivolous and for failing to state a claim upon which relief can be granted under 28 U.S.C. §1915(e)(2)(B)(i) and (ii).

A party's failure to file written objections to the proposed findings, conclusions, and recommendation contained in a magistrate judge's report and recommendation within 14 days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United States Auto. Assoc., 79 F.3d 1415 (5 Cir. 1996)(en banc).

New Orleans, Louisiana, this 1st day of March, 2017.

/s/_________

MICHAEL B. NORTH

UNITED STATES MAGISTRATE JUDGE