United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 9, 2003
Charles R. Fulbruge III
Clerk
No. 03-40731
Conference Calendar
LARRY NICHOLS,
Plaintiff-Appellant,
versus
TRACI KENNER; GREGG MARCHESSAULT, Assistant U.S. Attorney,
Tyler Division; JAMES A. HERSLEY, Special Agent, FBI,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:03-CV-132
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Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Larry Nichols appeals the denial of his mandamus petition,
in which he sought an order compelling U.S. Attorney Matthew
Orwig to investigate the alleged misconduct of the defendants
relative to the prosecution of Alan Petty. He argues that his
due process rights were violated when the magistrate judge issued
his recommendation prior to the expiration of the period afforded
Nichols to oppose the defendants’ motion to dismiss and,
*
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that this opinion should not be published and is not precedent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. 03-40731
-2-
additionally, that the district court purposely misconstrued the
relief he sought in order to favor the defendants.
Nichols is correct that the magistrate judge issued his
recommendation prior to the expiration of the 15-day period
afforded Nichols to oppose the defendants’ motion to dismiss, see
E.D. TEX. R. CV-7(e); nevertheless, the district court afforded
Nichols’s opposition de novo review before judgment was rendered,
and we therefore hold his due process argument meritless. Cf.
McGill v. Goff, 17 F.3d 729, 731 (5th Cir. 1994), overruled on
other grounds, Kansa Reinsurance Co. v. Congressional Mortgage
Corp. of Texas, 20 F.3d 1362, 1373-74 (5th Cir. 1994).
We further hold that the district court’s liberal
construction of Nichols’s pro se petition as requesting an order
compelling the defendants to undertake criminal prosecutions was
reasonable. See, e.g., Castro Romero v. Becken, 256 F.3d 349,
354 n.2 (5th Cir. 2001). Moreover, Nichols has failed to brief
the issue that served as the basis for the district court’s
decision, i.e., that he lacked standing to bring the instant
mandamus petition. He has therefore waived its review and,
consequently, has not demonstrated an entitlement to relief.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
This appeal is without arguable merit and is therefore
dismissed as frivolous. Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983); 5TH CIR. R. 42.2.
APPEAL DISMISSED.