                                                         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.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 6:03-CV-132
                       --------------------

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that this opinion should not be published and is not precedent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.
