United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 24, 2003
Charles R. Fulbruge III
Clerk
No. 03-10016
Conference Calendar
CALVIN RAY HYDER,
Petitioner-Appellant,
versus
WILLIAM F. SANDERSON, JR.,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CV-2145-G
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Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Calvin Ray Hyder, Texas prisoner #458495, moves for leave to
proceed in forma pauperis (“IFP”) following the district court’s
certification that his appeal from the dismissal as frivolous of
his 28 U.S.C. § 1651 petition for a writ of mandamus is not taken
in good faith, pursuant to 28 U.S.C. § 1915(a)(3) and FED. R. APP.
P. 24(a). Hyder is correct that 28 U.S.C. § 1915(a) has no
application in mandamus proceedings involving underlying habeas
petitions. See Santee v. Quinlan, 115 F.3d 355, 357 (5th Cir.
*
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that this opinion should not be published and is not precedent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. 03-10016
-2-
1997). Nevertheless, the district court’s certification was
permissible under FED. R. APP. P. 24(a).
Hyder has not demonstrated that the district court’s
certification was error. He contends that the district court
erred in dismissing his mandamus petition and in decertifying his
IFP status because he is clearly entitled to habeas relief,
renewing his claim that the Texas Attorney General was not
authorized to respond to his 1991 habeas petition. The mandamus
remedy is an extraordinary one, granted only in the clearest and
most compelling cases in which a party seeking mandamus shows
that no other adequate means exist to attain the requested relief
and that the right to the issuance of the writ is “clear and
indisputable.” In re Willy, 831 F.2d 545, 549 (5th Cir. 1987).
Mandamus is not a substitute for appeal. Id.
Hyder has not shown a clear entitlement to habeas relief.
His appropriate remedy was to raise the instant argument on
appeal from the denial of his 1991 habeas petition. Hyder filed
a motion for a certificate of probable cause in that case, but
his motion was denied by this court. See Hyder v. Johnson,
No. 92-1908 (5th Cir. Oct. 28, 1992). Hyder had adequate means
of obtaining review of the district court’s final judgment
dismissing his 1991 habeas petition. He is not entitled to
mandamus relief simply because he pursued his appropriate remedy
and failed to prevail.
No. 03-10016
-3-
Accordingly, IFP is DENIED. See FED. R. APP. P. 24(a).
The appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2;
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
IFP DENIED; APPEAL DISMISSED.