(HC)Walker v. Supreme Court of California, No. 1:2016cv00119 - Document 2 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Michael J. Seng on 2/29/2016 to dismiss 1 Petition for Writ of Mandate and directing Clerk of Court to assign a District Court Judge to the present matter. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 4/4/2016. (Lundstrom, T)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 11 Case No. 1:16-cv-00119 MJS (HC) DARNEL DAVONE WALKER, FINDINGS AND RECOMMENDATION TO Petitioner, DISMISS PETITION FOR WRIT OF MANDATE 12 13 v. ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT COURT JUDGE TO THE PRESENT MATTER 14 15 SUPREME COURT OF CALIFORNIA, [Doc. 1] Respondent. 16 17 18 19 Petitioner, a state prisoner, proceeds pro se with a petition styled as a petition for writ of mandate. 20 The Court is required to screen complaints brought by prisoners seeking relief 21 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 22 § 1915A(a). In his petition for writ of mandate, Petitioner requests this Court order the 23 November 24, 2015 decision of the United States District Court for the Central District of 24 California to be vacated and to review the prior denials of his criminal appeals in the 25 California state courts. See Walker v. Supreme Court of California, 2015 U.S. Dist. 26 LEXIS 159598 (C.D. Cal. Nov. 24, 2015). 27 Although the federal mandamus statute provides that "[t]he district courts shall 28 have original jurisdiction of any action in the nature of mandamus to compel an officer or 1 1 employee of the United States or any agency thereof to perform a duty owed to the 2 plaintiff" (28 U.S.C. § 1361), federal district courts are without power to issue mandamus 3 to direct other federal courts in the delegation of their legal duty. This Court finds the 4 petition for writ of mandate procedurally inappropriate. A writ of mandate is used to 5 compel a lower court to act, not to have the court of original jurisdiction review its own 6 decision. A challenge in this Court of a judgment by another district court is not proper. 7 Such challenges should be brought in the first instance to the proper appellate court, in 8 this case, the Ninth Circuit Court of Appeals. 9 Furthermore, federal district courts are without power to issue mandamus to direct 10 state courts, state judicial officers, or other state officials in the performance of their 11 duties. A petition for a writ of mandamus to compel a state court or official to take or 12 refrain from some action is frivolous as a matter of law. See Demos v. U.S. District 13 Court, 925 F.2d 1160, 1161 (9th Cir. 1991) ("We further note that this court lacks 14 jurisdiction to issue a writ of mandamus to a state court."); Clark v. Washington, 366 15 F.2d 678, 681 (9th Cir. 1966) ("The federal courts are without power to issue writs of 16 mandamus to direct state courts or their judicial officers in the performance of their 17 duties[.]"); see also Newton v. Poindexter, 578 F.Supp. 277, 279 (C.D. Cal. 1984) (§ 18 1361 has no application to state officers or employees). Accordingly, regardless whether 19 Petitioner requests this Court to direct another district court or a state court to act, this 20 Court cannot grant the relief Petitioner seeks. 21 Because the Court cannot grant the mandamus relief sought by Petitioner, his 22 petition will be dismissed for failure to state a claim upon which relief can be granted. 23 However, an action should not be dismissed without leave to amend unless it appears 24 that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 25 440 F.2d 13, 14 (9th Cir. 1971). Even if Petitioner were allowed to amend his petition 26 into a petition for writ of habeas corpus, it would be dismissed as a second or successive 27 petition. See 28 U.S.C. § 2244(b); Walker v. Supreme Court of California, 2015 U.S. 28 Dist. LEXIS 159598 (C.D. Cal. Nov. 24, 2015) (describing how Petitioner has already 2 1 filed several federal habeas petitions. 2 This Court cannot grant the relief Petitioner seeks and amendment would be 3 futile. The Court recommends that the petition for writ of mandate be denied. 4 II. CONCLUSION AND RECOMMENDATION 5 The Court RECOMMENDS that the petition, whether construed as a petition for 6 writ of mandate or as a petition for writ of habeas corpus be DISMISSED. Further, the 7 Court ORDERS the Clerk of Court to assign a District Court Judge to the present matter. 8 These findings and recommendations are submitted to the United States District 9 Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 10 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 11 Eastern District of California. Within thirty (30) days after being served with a copy, any 12 party may file written objections with the Court and serve a copy on all parties. Such a 13 document should be captioned "Objections to Magistrate Judge's Findings and 14 Recommendations." Replies to the objections shall be served and filed within fourteen 15 (14) days (plus three days if served by mail) after service of the objections. The Court 16 will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The 17 parties are advised that failure to file objections within the specified time may waive the 18 right to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 19 Cir. 2014). 20 21 22 23 IT IS SO ORDERED. Dated: February 29, 2016 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 3

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