(HC) Lira v. California Department of Corrections and Rehabilitation, No. 2:2018cv03074 - Document 5 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 12/10/2018 RECOMMENDING that 1 Petition for Writ of Mandamus be denied. Referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. (Huang, H)
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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RODOLFO LIRA, 12 13 14 15 No. 2:18-CV-3074-TLN-DMC-P Petitioner, v. FINDINGS AND RECOMMENDATIONS CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, 16 Respondent. 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 19 mandamus. 20 Under 28 U.S.C. § 1651(a), all federal courts may issue writs “in aid of their 21 respective jurisdictions. . .” In addition, the district court has original jurisdiction under 28 22 U.S.C. § 1361 to issue writs of mandamus. That jurisdiction is limited, however, to writs of 23 mandamus to “compel an officer or employee of the United States or any agency thereof to 24 perform a duty. . .” 28 U.S.C. § 1361 (emphasis added). It is also well-established that, with very 25 few exceptions specifically outlined by Congress, the federal court cannot issue a writ of 26 mandamus commanding action by a state or its agencies. See e.g. Demos v. U.S. Dist. Court for 27 Eastern Dist. of Wash., 925 F.2d 1160 (9th Cir. 1991). Where the federal court does have 28 jurisdiction to consider a petition for a writ of mandamus, such a writ may not issue unless it is to 1 1 enforce an established right by compelling the performance of a corresponding non-discretionary 2 ministerial act. See Finley v. Chandler, 377 F.2d 548 (9th Cir. 1967). 3 In this case, petitioner seeks a writ of mandamus directed to the California 4 Department of Corrections and Rehabilitation and the Riverside County Superior Court 5 instructing that his request for resentencing be granted. Mandamus is not appropriate because 6 petitioner does not seek a writ directed to an employee of the United States or an agency thereof. 7 Mandamus is also not appropriate because petitioner does not seek an order compelling the 8 performance of a non-discretionary ministerial act. 9 10 Based on the foregoing, the undersigned recommends that petitioner’s petition for a writ of mandamus be denied. 11 These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 13 after being served with these findings and recommendations, any party may file written objections 14 with the court. Responses to objections shall be filed within 14 days after service of objections. 15 Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 16 Ylst,951 F.2d 1153 (9th Cir. 1991). 17 18 19 Dated: December 10, 2018 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 2