Mays v. Adams
Filing
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ORDER DISMISSING 31 Petition for Writ of Mandamus signed by Magistrate Judge Michael J. Seng on 11/1/2011. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MARTIN MAYS,
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Petitioner,
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v.
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DERRAL ADAMS,
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Respondent.
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1:06-cv-00990 MJS
ORDER DISMISSING PETITION FOR
WRIT OF MANDAMUS
(Doc. 31)
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Petitioner is a state prisoner proceeding pro se with a petition for writ of mandamus
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pursuant to 28 U.S.C. § 1651. Petitioner has consented to Magistrate Judge jurisdiction under
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28 U.S.C. § 636(c).
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On July 31, 2006, Petitioner filed a petition for writ of habeas corpus with this Court.
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(Pet., ECF No. 1.) On March 3, 2008, the petition was dismissed as successive and untimely.
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(Order, ECF No. 22.)
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After his petition was denied, Petitioner filed a petition for writ of mandamus with the
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United States Court of Appeals for the Ninth Circuit. The Ninth Circuit denied the petition on
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March 11, 2010 and held that “No motions for reconsideration, modification, or clarification of
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this order shall be filed or entertained.” (Order, ECF No. 28.)
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On July 26, 2010, Petitioner filed a petition for writ of mandamus with this Court. (Pet.,
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ECF No. 31.) By way of the petition for writ of mandamus, petitioner requests that the Court
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hear the merits of his habeas petition.
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The All Writs Act provides in relevant part that "[t]he Supreme Court and all courts
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established by Act of Congress may issue all writs necessary or appropriate in aid of their
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respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. §
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1651(a). Under this authority, the writ of mandamus may be used in the federal courts to
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confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to
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exercise its authority when it is its duty to do so. Will v. United States, 389 U.S. 90, 95, 88 S.
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Ct. 269, 19 L. Ed. 2d 305 (1967).
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Here, the Ninth Circuit has already denied Petitioner’s request to grant such a writ.
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Further, this Court finds the petition for writ of mandate procedurally inappropriate. A writ of
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mandate is used to compel a lower court to act, not to have the court of original jurisdiction
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review its own decision. A challenge in this Court of a judgment by this Court may in an
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appropriate case be made by way of a motion for reconsideration. Accordingly, construing
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Petitioner’s pleadings in a light most favorable to Petitioner, the Court shall consider the
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petition for writ of mandamus a motion for reconsideration pursuant to Federal Rule of Civil
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Procedure section 60(b).
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Rule 60(b) of the Federal Rules of Civil Procedure provides:
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On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following
reasons:
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(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is
based on an earlier judgment that has been reversed or vacated;
or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
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Petitioner does not set forth any arguments or evidence that merit reconsideration.
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Petitioner’s petition for writ of habeas corpus was both successive and untimely. Petitioner has
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not shown that he has obtained permission from the Ninth Circuit to proceed with a successive
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petition, nor has Petitioner presented any grounds under Rule 60(b) as to why the matter
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should be granted relief.
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Petitioner’s petition for writ of mandamus, even if construed as a motion for
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reconsideration, is therefore DENIED. No further pleadings shall be considered in the present
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action.
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IT IS SO ORDERED.
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Dated:
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November 1, 2011
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
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