Reinhardt v. Fifth District Court of Appeals

Filing 32

FINDINGS and RECOMMENDATIONS to Dismiss 13 Petition for Writ of Mandamus signed by Magistrate Judge Michael J. Seng on 08/07/2013. Referred to Judge O'Neill; Objections to F&R due by 9/9/2013. (Flores, E)

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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 1:13-cv-00938 LJO MJS HC DAVE REINHARDT, 12 13 FINDINGS AND RECOMMENDATION TO Petitioner, DISMISS PETITION FOR WRIT OF MANDAMUS v. 14 15 16 FIFTH DISTRICT COURT OF APPEALS, et al., Respondents. 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner, a state prisoner, proceeds pro se with a petition styled as a petition for writ of mandate. On June 24, 2013, this Court dismissed the petition without prejudice because it failed to state a claim upon which relief could be granted. (See Order, ECF No. 7.) The Court provided Petitioner thirty days to file an amended petition for writ of mandate, or in the alternative, file a petition for writ of habeas corpus. (Id.) Since June 24, Petitioner has filed twenty motions, documents, and other correspondence with the Court. None of them serve to show that Petitioner is entitled to relief by way of a writ of mandamus or that, if his writ were construed as a petition for writ of habeas corpus, it would not be dismissed as successive. As previously explained, although the federal mandamus statute provides that 1 1 "[t]he district courts shall have original jurisdiction of any action in the nature of 2 mandamus to compel an officer or employee of the United States or any agency thereof 3 to perform a duty owed to the plaintiff" (28 U.S.C. § 1361), federal district courts are 4 without power to issue mandamus to direct state courts, state judicial officers, or other 5 state officials in the performance of their duties. A petition for a writ of mandamus to 6 compel a state court or official to take or refrain from some action is frivolous as a matter 7 of law. See Demos v. U.S. District Court, 925 F.2d 1160, 1161 (9th Cir. 1991) ("We 8 further note that this court lacks jurisdiction to issue a writ of mandamus to a state 9 court."); Clark v. Washington, 366 F.2d 678, 681 (9th Cir. 1966) ("The federal courts are 10 without power to issue writs of mandamus to direct state courts or their judicial officers in 11 the performance of their duties[.]"); see also Newton v. Poindexter, 578 F.Supp. 277, 12 279 (C.D. Cal. 1984) (§ 1361 has no application to state officers or employees). 13 Petitioner requests that this Court order the California Attorney General's Office to 14 investigate matters relating to alleged fraud with regard to a trust document that was the 15 subject the initial dispute that lead to Petitioner's crime of conviction. Accordingly, this 16 Court cannot grant the relief Petitioner seeks. The Court therefore recommends that the 17 petition for writ of mandate be denied. 18 Furthermore, to the extent that Petitioner attempts to file a habeas petition with 19 this Court to challenge his conviction, it must be dismissed unless he has obtained 20 permission from the Ninth Circuit Court of Appeals to file another habeas petition with 21 this Court. See 28 U.S.C. § 2244(b); Reinhardt v. Feller, E.D. Cal. Case No. 1:08-cv- 22 00329-LJO-DLB. Petitioner, in his responses to this Court's June 24, 2013 order, 23 indicated that he had recently filed for permission from the Ninth Circuit Court of Appeals 24 to file a successive petition. However, Petitioner has not shown that he has obtained 25 permission from the Ninth Circuit at this time. 26 Section 2244 (b)(3)(A) provides: "Before a second or successive application 27 permitted by this section is filed in the district court, the applicant shall move in the 28 appropriate court of appeals for an order authorizing the district court to consider the 2 1 application." In other words, Petitioner must obtain leave from the Ninth Circuit before he 2 can file a second or successive petition in district court. See Felker v. Turpin, 518 U.S. 3 651, 656-657 (1996). This Court must dismiss any second or successive petition unless 4 the Court of Appeals has given Petitioner leave to file the petition because a district court 5 lacks subject-matter jurisdiction over a second or successive petition. Greenawalt v. 6 Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997). As Petitioner has not obtained permission 7 from the Ninth Circuit, the Court recommends that his petition, if construed as a petition 8 for writ of habeas corpus, be denied. 9 RECOMMENDATION 10 11 The Court RECOMMENDS that the petition, whether construed as a petition for writ of mandate or as a petition for writ of habeas corpus be DISMISSED. 12 These findings and recommendations are submitted to the United States District 13 Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 14 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 15 Eastern District of California. Within thirty (30) days after being served with a copy, any 16 party may file written objections with the Court and serve a copy on all parties. Such a 17 document should be captioned "Objections to Magistrate Judge's Findings and 18 Recommendations." Replies to the objections shall be served and filed within fourteen 19 (14) days (plus three days if served by mail) after service of the objections. The Court 20 will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(c). The 21 parties are advised that failure to file objections within the specified time may waive the 22 right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 24 IT IS SO ORDERED. 25 Dated: 26 August 7, 2013 /s/ UNITED STATES MAGISTRATE JUDGE DEAC _Signature- END: 27 Michael J. Seng 92b0h 28 3

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