Fisher v. Clayton , 168 F. App'x 620 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 04-41640
Conference Calendar
LARRY FISHER,
Plaintiff-Appellant,
versus
JOE D. CLAYTON,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:04-CV-428
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Larry Fisher, Texas prisoner # 671581, appeals from the
dismissal of his mandamus action, in which Fisher sought for the
district court to compel the state trial court to allow him to
withdraw his plea of guilty to aggravated robbery. Fisher also
moves for appointment of counsel; his motion is denied.
Fisher does not contend that the district court erred by
dismissing his mandamus petition for lack of jurisdiction.
Fisher thus has failed to brief the sole relevant issue for
*
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this opinion should not be published and is not precedent except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.
No. 04-41640
-2-
appeal. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987). Moreover, the district court
lacks jurisdiction to compel the state court to allow Fisher to
withdraw his guilty plea. See Moye v. Clerk, DeKalb County
Superior Court, 474 F.2d 1275, 1275-76 (5th Cir. 1973); see also
Santee v. Quinlan, 115 F.3d 355, 356 (5th Cir. 1997). Fisher’s
appeal is dismissed as frivolous; neither the district court’s
dismissal of the mandamus petition nor our dismissal of Fisher’s
appeal counts as a strike pursuant to 28 U.S.C. § 1915(g). See
5TH CIR. R. 42.2.
APPEAL DISMISSED. APPOINTMENT OF COUNSEL DENIED.