Carbin v. State of Mississippi, et al

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
February 18, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-60798
Conference Calendar
CHRIS CARBIN,
Plaintiff-Appellant,
versus
STATE OF MISSISSIPPI; MIKE MOORE;
GEORGE CARLSON,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:03-CV-916-WS
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Christopher “Chris” Carbin, Mississippi prisoner # 44718,
appeals the district court’s sua sponte dismissal of his petition
for a writ of mandamus seeking to compel a Mississippi state
court clerk to docket a writ of error that he submitted on April
29, 2003, and to issue summons. The district court held that it
lacked jurisdiction to compel the state court clerk to docket the
submission. Carbin contends that the district court should have

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No. 03-60798
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allowed him to amend his petition to request relief under the All
Writs Act, 28 U.S.C. § 1651(a). He also asserts that the refusal
to docket the motion is a denial of his due process rights.
Although conceding that the state court subsequently ruled
on the motion that he seeks to have docketed, Carbin asserts that
the state court was without jurisdiction to enter judgment given
the pendency of this federal appeal. This argument is without
merit. In light of the state court’s dismissal of the writ of
error, Carbin’s request to compel the state court clerk to docket
the writ is moot, and his appeal is DISMISSED. See Bailey v.
Southerland, 821 F.2d 277, 278 (5th Cir. 1987).

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