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Melvin Johnson, III v. Craig Estlinbaum , 667 F. App'x 527 ( 2016 )


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  •      Case: 15-40890      Document: 00513598742         Page: 1    Date Filed: 07/19/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-40890                              FILED
July 19, 2016
Lyle W. Cayce
MELVIN JOHNSON, III,                                                            Clerk
Plaintiff-Appellant
v.
CRAIG ESTLINBAUM; SHARON KELLER, Presiding Judge; LAWRENCE E.
MEYERS; CHERYL JOHNSON, Judge; MIKE KEASLER, Judge,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:15-CV-130
Before PRADO, OWEN, and COSTA, Circuit Judges.
PER CURIAM: *
Melvin Johnson, III, Texas prisoner # 1626767, filed a
    42 U.S.C. § 1983
    action against a Texas district court judge and the judges of the Texas Court
of Criminal Appeals, alleging that he was denied a fair opportunity to present
facts in support of his state habeas application. The district court dismissed
the complaint without prejudice, and it denied Johnson’s motion to proceed in
forma pauperis (IFP) on appeal. The court certified that the appeal was not
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-40890     Document: 00513598742    Page: 2   Date Filed: 07/19/2016
No. 15-40890
taken in good faith.    By moving for IFP status in this court, Johnson is
challenging the district court’s certification. See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997).
Johnson’s argument that his claims for prospective injunctive and
declaratory relief are cognizable under § 1983 fails. Here, Johnson challenged
alleged constitutional defects in the state habeas proceedings—claims which
he concedes cannot form the basis for federal habeas relief. See Moore v.
Dretke,
    369 F.3d 844
    , 846 (5th Cir. 2004). Moreover, a review of his pleadings
demonstrates that the only remedy he sought against the Texas judges was in
the nature of mandamus relief. Federal courts, however, do not have the
authority to direct a state court’s actions under the circumstances alleged by
Johnson. See Moye v. Clerk, DeKalb Cnty. Superior Court,
    474 F.2d 1275
    ,
1275-76 (5th Cir. 1973).
Johnson’s appeal is without arguable merit and is frivolous. See Howard
v. King,
    707 F.2d 215
    , 219-20 (5th Cir. 1983). Accordingly, we deny the IFP
motion and dismiss the appeal. See Baugh,
    117 F.3d at 202
    ; 5TH CIR. R. 42.2.
The dismissal of the appeal as frivolous counts as a “strike” for purposes of the
“three strikes” bar under
    28 U.S.C. § 1915
    (g). See Adepegba v. Hammons,
    103 F.3d 383
    , 387-88 (5th Cir. 1996). Johnson is WARNED that if he accumulates
at least three strikes under § 1915(g), he will not be able to proceed IFP in any
civil action or appeal filed in a court of the United States while he is
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
2