Unpublished Disposition, 875 F.2d 318 (9th Cir. 1986)

MEMORANDUM^** 

Dennis Fixel, a Nevada state prisoner, appeals pro se the denial of his 28 U.S.C. § 1361 mandamus petition for lack of jurisdiction. Fixel contends that he should be released from prison due to allege defects in his state conviction. He maintains specifically that the Nevada statutes under which he was sentenced were unconstitutional.

On May 7, 1986, Dennis Fixel, a Nevada state prisoner, filed pro se a petition for writ of mandamus against various state defendants and against federal district court Judge Edward Reed, seeking release from his confinement at the Northern Nevada Correctional Center. Fixel alleged that he was being held in violation of his constitutional rights because the indictment against him was insufficient and because the statutes under which he was convicted in 1981, for robbery and for use of a deadly weapon in the commission of a crime, were unconstitutional.

The matter was referred to a magistrate for preliminary review pursuant to 28 U.S.C. § 636(b) (1) (B). The magistrate determined, in part, that the appropriate remedy for Fixel was a habeas corpus petition, but that a habeas petition presenting the same issues as Fixel raised in his mandamus action was already before the court. The magistrate concluded that the petition should be denied because the district court did not have jurisdiction to issue a writ of mandamus.

Fixel did not object to the magistrate's report and recommendation. The district court adopted the magistrate's findings and entered judgment against Fixel. Fixel timely appeals.

Mandamus may be granted when (1) the plaintiff's claim is "clear and certain;" (2) the duty is "ministerial and so plainly prescribed as to be free from doubt;" and (3) no other adequate remedy is available. Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir. 1986) (quoting Tagupa v. East-West Center, Inc., 642 F.2d 1127, 1129 (9th Cir. 1981)). Here, Fixel clearly does not meet the third part of the test because habeas corpus, 28 U.S.C. § 2254, is certainly an adequate remedy, and may even be the exclusive remedy available to Fixel. See Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681-82 (9th Cir. 1984). In fact, when the district court denied the mandamus petition, Fixel had a habeas petition pending in the district court, which raised the same issues he raised in the mandamus petition. Accordingly, the district court did not err in ruling that it had no power under 28 U.S.C. § 1361 to order Fixel's release from prison and that his proper remedy was a habeas petition. We adopt the findings and conclusions of the district court and its judgment is

AFFIRMED.