(HC) Johnson v. Court of Appeals, Fifth Appellate District, No. 1:2015cv01525 - Document 10 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss for Lack of Jurisdiction; ORDER DIRECTING Clerk of the Court to Assign District Judge to Case; ORDER DIRECTING that Objections be Filed within Twenty-One Days signed by Magistrate Judge Jennifer L. Thurston on 10/28/2015. Referred to Judge Anthony W. Ishii. Objections to F&R due by 11/23/2015. (Sant Agata, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ) ) Petitioner, ) ) v. ) COURT OF APPEALS, FIFTH APPELLATE ) ) DISTRICT, ) Respondent. ) ) ERIC JOHNSON, Case No. 1:15-cv-01525 – JLT (HC) FINDINGS AND RECOMMENDATIONS TO DISMISS FOR LACK OF JURISDICTION ORDER DIRECTING CLERK OF THE COURT TO ASSIGN DISTRICT JUDGE TO CASE ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS 17 18 Petitioner is a state prisoner proceeding pro se pursuant to a petition for writ of mandamus 19 pursuant to 28 U.S.C. § 1651. (Doc. 1). The matter was filed in the Sacramento Division of this Court 20 on October 5, 2015 and was transferred to the Fresno Division on October 8, 2015. (Doc. 3). 21 DISCUSSION 22 A. Preliminary Screening of Petition. 23 Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) 24 requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court 25 must summarily dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits 26 that the petitioner is not entitled to relief in the district court....” Habeas Rule 4; O'Bremski v. Maass, 27 915 F.2d 418, 420 (9th Cir.1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990). Habeas 28 Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the 1 1 facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; the 2 petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory 3 Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 4 Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably 5 incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 491. 6 The Court may dismiss a petition for writ of habeas corpus either on its own motion under 7 Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has 8 been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see Herbst v. Cook, 260 F.3d 9 1039, 1042–43 (9th Cir.2001). However, a petition for habeas corpus should not be dismissed without 10 leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. 11 Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir.1971). 12 Here, Petitioner alleges that, while a state prisoner, he was convicted of indecent exposure in the 13 Kings County Superior Court based upon allegations that Petitioner had masturbated in his prison cell 14 in a way meant to be seen by a female staff member. (Doc. 1, p. 1). The conviction was later affirmed 15 by the California Court of Appeal, Fifth Appellate District (“5th DCA”) by an unpublished opinion 16 dated May 12, 2015. (Doc. 1, p. 10). Petitioner then filed a petition for review in the California 17 Supreme Court that was denied on July 29, 2015. (Doc. 1, p. 1). 18 Petitioner alleges numerous flaws in both his bench trial and in the 5th DCA’s opinion. 19 Petitioner requests an order from this Court reversing the 5th DCA and ordering the trial court to 20 acknowledge the reversal of his conviction and order his release from confinement. (Doc. 1, p. 5). 21 B. Lack Of Jurisdiction Under Writ of Mandate Statute 22 The federal mandamus statute provides: “the district courts shall have original jurisdiction of 23 any action in the nature of mandamus to compel an officer or employee of the United States or any 24 agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. A writ of mandamus is an 25 extraordinary writ, and is issued only when (1) the plaintiff’s claim is “clear and certain;” (2) the 26 defendant official’s duty to act is ministerial and “so plainly prescribed as to be free from doubt; and 27 (3) no other adequate remedy is available. Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir. 1994) 28 (citations omitted). 2 1 Further, although 28 U.S.C. § 1651 states that all courts established by Act of Congress “may 2 issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the 3 usages and principles of law,” the courts lack subject matter jurisdiction to issue a writ of mandamus to 4 a state employee. See Demos v. United States District Court for the E. Dist. of Wash., 925 F.2d 1160, 5 1161–62 (9th Cir.1991) (state court). 6 In Silveyra v. Moschorak, the Ninth Circuit held that the Mandamus Act may be invoked to 7 compel a federal official to perform a duty owed to a plaintiff who “falls within the ‘zone of interests’ 8 protected by the underlying statute.” 989 F.2d 1012, 1014 n. 1 (9th Cir. 1993) (citing Jarecki v. United 9 States, 590 F.2d 670, 675 (7th Cir. 1979)). Mandamus is appropriate when the official’s duty to act is 10 ministerial in nature and so plain as to be free from doubt. Id. Even where an official’s responsibilities 11 are in some respects discretionary, mandamus is appropriate if “‘statutory or regulatory standards 12 delimiting the scope or manner in which such discretion can be exercised . . . have been ignored or 13 violated.’” Carpet, Linoleum and resilient Tile Layers, Local Union No. 419 v. Brown, 656 F.2d 564, 14 566 (10th Cir. 1981) (citation omitted); see also, Work v. United Staes ex rel Rives, 267 U.S. 175, 177, 15 45 S.Ct. 252, 253 (1925)(mandamus is appropriate if an official transgresses the limits of her 16 discretion). 17 However, mandamus relief is only available to compel an officer of the United States to 18 perform a duty; federal courts are without the power to issue mandamus to direct state courts or their 19 judicial officers in the performance of their duties. A petition for mandamus to compel a state court to 20 take or refrain from some action is frivolous as a matter of law. Demos v. U.S. District Court, 925 F.2d 21 1160, 1161-72 (9th Cir.) (Imposing no filing in forma pauperis order), cert. denied, 111 S.Ct. 1082 22 (1991); Clark v. Washington, 366 F.2d 678, 681 (9th Cir. 1966) (attorney contested disbarment and 23 sought reinstatement); Dunlap v. Corbin, 532 F.Supp. 183, 187 (D. Ariz. 1981) (plaintiff sought order 24 from federal court directing state court to provide speedy trial), aff’d without opinion, 673 F.2d 1337 25 (9th Cir. 1982). 26 Because Petitioner seeks mandamus relief directed at a state agency, i.e., the 5th DCA, this 27 Court lacks jurisdiction under § 1651. Hence, as discussed above, the petition is frivolous as a matter 28 of law. Accordingly, the Court will recommend that the petition be dismissed. 3 1 /// 2 ORDER 3 For the foregoing reasons, the Clerk of the Court is DIRECTED to assign a United States 4 District judge to this case. 5 RECOMMENDATION 6 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be 7 8 DISMISSED for lack of jurisdiction. This Findings and Recommendation is submitted to the United States District Court Judge 9 assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 10 Rules of Practice for the United States District Court, Eastern District of California. Within 21 days 11 after being served with a copy of this Findings and Recommendation, any party may file written 12 objections with the Court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the Objections shall be 14 served and filed within 10 days after service of the Objections. The Court will then review the 15 Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to 16 file objections within the specified time may waive the right to appeal the Order of the District Court. 17 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 19 20 21 IT IS SO ORDERED. Dated: October 28, 2015 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 4
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