     Case: 11-50874   Document: 00511871360   Page: 1   Date Filed: 05/30/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                                 May 30, 2012
                                No. 11-50874
                              Summary Calendar                   Lyle W. Cayce
                                                                      Clerk

MICHAEL JOSEPH GOWAN,

                                           Plaintiff-Appellant

v.

SHARON KELLER, In Her Official Capacity as a Judge at the Texas Court of
Criminal Appeals; LAWERENCE E. MYERS, In His Official Capacity as a Judge
at the Texas Court of Criminal Appeals; TOM PRICE, In His Official Capacity
as a Judge at the Texas Court of Criminal Appeals; PAUL WOMACK, In His
Official Capacity as a Judge at the Texas Court of Criminal Appeals; CHERYL
JOHNSON, In Her Official Capacity as a Judge at the Texas Court of Criminal
Appeals; MIKE KEASLER, In His Official Capacity as a Judge at the Texas
Court of Criminal Appeals; BARBARA A. HERVEY, In Her Official Capacity as
a Judge at the Texas Court of Criminal Appeals; CHARLES R. HOLCOMB, In
His Official Capacity as a Judge at the Texas Court of Criminal Appeals;
KATHY COHCRAN, In Her Official Capacity as a Judge at the Texas Court of
Criminal Appeals; JUANITA PAVLICK, In Her Official Capacity as Judge for
the 89th District Court, Wichita County; DORSEY R. TRAPP, In His/Her
Official Capacity as Clerk for the 89th District Court, Wichita County; “L. H.”,
In His/Her Official Capacity as Deputy Clerk for the 89th Judicial District Court
of Wichita County; ASHLEY MATHIS, In Her Official Capacity as Deputy Clerk
for the 89th Judicial District Court of Wichita County; WICHITA COUNTY,
TEXAS,

                                           Defendants-Appellees


                 Appeals from the United States District Court
                       for the Western District of Texas
                            USDC No. 1:10-CV-429
   Case: 11-50874       Document: 00511871360         Page: 2     Date Filed: 05/30/2012

                                       No. 11-50874

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Michael Joseph Gowan, Texas prisoner # 701757, appeals the district
court’s dismissal with prejudice of his 42 U.S.C. § 1983 complaint seeking
declaratory and injunctive relief against several Texas court officials. Gowan
challenges the procedural rules applicable to state habeas applications. He
argues that he was denied access to courts by operation of the 35-day rule under
Texas Code of Criminal Procedure article § 11.07, allowing for the transfer of his
state habeas application from the trial court to the TCCA.                    Although he
acknowledges that his applications were heard and denied by the TCCA, Gowan
argues that the denial was based on a fraudulent recommendation from the clerk
of the trial court. Gowan further asserts that his claim challenging the denial
of his 2001 habeas application was timely filed because he did not discover the
fraud until 2007. Additionally, Gowan argues that his due process rights were
violated by the operation of Article 11.07.
       A complaint dismissed as frivolous pursuant to 28 U.S.C. § 1915(e) is
reviewed for an abuse of discretion. Norton v. Dimazana, 122 F.3d 286, 291 (5th
Cir. 1997).
       Gowan’s assertion that he was denied access to the courts is unavailing
because he was able to prepare and transmit his applications to the state courts.
See Brewer v. Wilkinson, 3 F.3d 816, 821 (5th Cir. 1993). His challenge to the
denial of due process also fails because he has not established that he was denied
his right to be heard “in a meaningful manner.” Price v. City of Junction, 711
F.2d 582, 589 (5th Cir. 1983). Moreover, Gowan’s challenge to the denial of his
2001 state habeas application was barred by the applicable statute of
limitations. See Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir. 1995).


       *
         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.

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   Case: 11-50874      Document: 00511871360   Page: 3   Date Filed: 05/30/2012

                                  No. 11-50874

The discovery in 2007 of a paper discussing Texas postconviction procedures and
an alleged letter from the clerk of court stating that generally the state habeas
applications are forwarded to the TCCA as set forth in Texas Code of Criminal
Procedure article 11.07, section 3(c) does not give rise to an injury.
      To the extent that Gowan is seeking to have the federal court direct the
state court to perform its duties as he wishes, his pleadings were properly
construed as a petition for mandamus relief. See Moye v. Clerk, DeKalb County
Superior Court, 474 F.2d 1275, 1276 (5th Cir. 1973). Because federal courts
have no authority to issue writs of mandamus directing state courts in the
performance of their duties where mandamus is the only relief sought, the
district court lacked authority to order the state courts to act on Gowan’s state
habeas applications. See id. at 1275-76. In addition, the district court did not
err in determining that Gown’s claim is legally indistinguishable from the § 1983
challenge in Rhodes v. Keller. See Rhodes v. Keller, 77 Fed. Appx. 261 (5th Circ.
2003).
      Accordingly, the judgment of the district court is AFFIRMED. The motion
for appointment of counsel is DENIED. See Ulmer v. Chancellor, 691 F.2d 209,
212 (5th Cir. 1982).




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