Shamblin v. Owens ( 1999 )

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This order and judgment is not binding precedent, except under the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
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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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