(HC)Wirth v. State of California, No. 2:2018cv02142 - Document 8 (E.D. Cal. 2018)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 9/07/18 GRANTING 5 Motion to Proceed IFP. The clerk of court is directed to assign a District Court Judge to this case. Also, RECOMMENDING that petitioner's amended petition for a writ of mandate 4 be dismissed; and this case be closed. Assigned and referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES A. WIRTH, 12 Petitioner, 13 14 No. 2:18-cv-2142 CKD P v. ORDER AND STATE OF CALIFORNIA, 15 FINDINGS AND RECOMMENDATIONS Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a “petition for a writ of mandate,” 18 together with an application to proceed in forma pauperis. Examination of the in forma pauperis 19 application reveals that petitioner is unable to afford the costs of suit. Accordingly, the 20 application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a). As for the petition, petitioner has filed an original, and an amended petition. Good cause 21 22 appearing, this action proceeds on the amended petition. In the amended petition, petitioner asks that the court order certain California courts to 23 24 “answer” issues presented in various actions for collateral relief brought by petitioner. However, 25 while the court has the ability to entertain a petition for writ of habeas corpus pursuant to 28 26 U.S.C. § 2254 based upon a claim that petitioner is in custody in violation of federal law, 28 27 U.S.C. § 2254(a), the court, generally speaking, has no authority to order a state court to address 28 ///// 1 1 any issue presented in a petition for collateral relief. Since the court has no ability to order the 2 relief sought, the court will recommend that petitioner’s “petition for a writ of mandate”1 be 3 denied. 4 In accordance with the above, IT IS HEREBY ORDERED that: 5 1. Petitioner’s motion to proceed in forma pauperis (ECF NO. 5) is granted. 6 2. The Clerk of the Court is directed to assign a district court judge to this case. 7 IT IS HEREBY RECOMMENDED that: 8 1. Petitioner’s amended petition for a writ of mandate (ECF No. 4) be dismissed; and 9 2. This case be closed. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen after 12 being served with these findings and recommendations, petitioner may file written objections 13 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 14 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 15 time waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th 16 Cir. 1991). 17 Dated: September 7, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 1 wirt2142. mand 24 25 26 27 28 1 Under California Code of Civil Procedure § 1085(a), a California Court, can issue a writ of mandate to an inferior court “to compel the performance” of an act required under law. 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.