From Casetext: Smarter Legal Research

Russell v. Knight

United States Court of Appeals, Fifth Circuit
Dec 5, 1973
488 F.2d 96 (5th Cir. 1973)

Summary

holding that federal mandamus is not available in actions against state officials

Summary of this case from Johnson v. Georgia

Opinion

No. 73-1701. Summary Calendar.

Rule 18, 5th Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

December 5, 1973.

Eugene Russell, pro se.

Eldridge W. Fleming, Dist. Atty., Coweta Judicial Circuit, Carrollton, Ga., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.



It is ordered that the dismissal of this petition for writ of mandamus be vacated and the case remanded for further consideration by the District Court.

After conviction for arson in a Georgia state court, petitioner, Eugene Russell, on September 18, 1972, filed a notice of appeal and a motion to proceed in forma pauperis dated September 11, 1972. In an order dated September 22, 1972, respondent, the Honorable Lamar Knight, Judge, Superior Court of Troup County, Georgia, holding that petitioner was not an indigent, ruled as follows:

It is therefore considered ordered and adjudged that the application to proceed in forma pauperis is hereby denied. The appeal is therefore dismissed.

The pro se defendant then filed another notice of appeal dated September 27, 1972. On November 3, 1972, Judge Knight dismissed this appeal by an order which provided:

[T]his Motion was dated September 27, 1972. It is, therefore, appearing on the face of the record, that motion was filed too late.

Petitioner subsequently brought a petition for writ of mandamus in the Northern District of Georgia, alleging denial of his right of appeal. Judge Knight responded to the District Court's show cause order with a pleading which showed that petitioner's September 27 notice was untimely and that petitioner was not an indigent at the time of the trial. The District Court thereupon dismissed the petition and this appeal followed.

Although this Court has been handicapped by the failure of either the respondent, or anyone on behalf of the State, to file a brief on this appeal, it appears from the record before us that the order dated September 22, 1972, dismissed petitioner's appeal because he did not qualify as a pauper. Neither Judge Knight's response to the District Court's show cause order, nor the District Court order dismissing the appeal, evidences any consideration of the pro se notice of appeal filed with petitioner's pauper application. References to untimeliness in the disposition of this case, both in state and federal court, apparently relate to the second notice of appeal.

Although federal courts have no general power to direct state courts and their judicial officers in the performance of their duties where mandamus is the only relief sought, petitioner's pleading, styled as a petition for writ of mandamus, may be construed liberally and treated as one for writ of habeas corpus. Habeas corpus relief is appropriate for an unconstitutional denial of the right of appeal. On remand, the District Court should reconsider petitioner's claim for relief in the light of this order, conduct such hearings as it may deem appropriate, and should determine whether petitioner has exhausted his state remedies if the petition is to be treated as a petition for writ of habeas corpus.

Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275 (5th Cir. 1973); Anderson v. Beto, 469 F.2d 1076 (5th Cir. 1972); Lamar v. 118th Judicial District Court, 440 F.2d 383 (5th Cir. 1971).

Cf., e. g., Wooley v. Consolidated City of Jacksonville, 433 F.2d 980 (5th Cir. 1970), cert. denied, 407 U.S. 924, 92 S.Ct. 2451, 32 L.Ed.2d 811 (1972); May v. Georgia, 409 F.2d 203 (5th Cir. 1969).

See Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963); Douglas v. Green, 363 U.S. 192, 80 S.Ct. 1048, 4 L.Ed. 2d 1142 (1960); Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215 (1951).

Vacated and remanded.


Summaries of

Russell v. Knight

United States Court of Appeals, Fifth Circuit
Dec 5, 1973
488 F.2d 96 (5th Cir. 1973)

holding that federal mandamus is not available in actions against state officials

Summary of this case from Johnson v. Georgia

holding that federal mandamus is not available in actions against state officials

Summary of this case from Johnson v. Georgia

construing mandamus petition as a section 2254 habeas petition

Summary of this case from Davis v. Fechtel

construing mandamus petition as a § 2254 habeas petition

Summary of this case from Mack v. Cockrell

construing mandamus petition as a section 2254 habeas petition

Summary of this case from Oneal v. Johnson
Case details for

Russell v. Knight

Case Details

Full title:EUGENE RUSSELL, PETITIONER-APPELLANT, v. HONORABLE JUDGE LAMAR KNIGHT…

Court:United States Court of Appeals, Fifth Circuit

Date published: Dec 5, 1973

Citations

488 F.2d 96 (5th Cir. 1973)

Citing Cases

Wright v. State

However, it is well settled that federal courts have no general power to compel action by state officials.…

Wheeler v. Sec'y, Dep't of Corr.

Moreover, even outside the §2254 context, a federal court does not have jurisdiction to issue writs…