Borden v. Court of Appeals, Third Appellate Distric

Filing 11

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 04/14/14 ORDERING that petitioner's request for leave to proceed in forma pauperis 4 is granted. Also, RECOMMENDING that the petition for a writ of mandamus be dismissed for lack of jurisdiction. Referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL F. BORDEN,

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No. 2:13-cv-2272-TLN-EFB P

Petitioner,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

COURT OF APPEALS, THIRD
APPELLATE DISTRICT, et al.,
Respondents.

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Petitioner is a state prisoner without counsel seeking a writ of mandamus pursuant to 28

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U.S.C. §§ 1361, 1651.1 He contends that unnamed police officers engaged in “serious” and

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“outrageous” misconduct that “must be decided now by this court, as the lower courts turned a

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blind-eye.” ECF No. 1 at 2-3. Petitioner “demands full consideration of [the] issues . . . [he]

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raised at trial but [were] ignored.” Id. at 9. He names the California Third District Court of

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Appeals and the Sacramento County Superior Court as respondents to his petition for writ of

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mandamus.

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Federal district courts are not authorized to issue writs of mandamus to direct state courts,
state judicial officers, or other state officials in the performance of their duties. See Demos v.
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Petitioner seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915. Examination
of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit.
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U.S. District Court, 925 F.2d 1160, 1161 (9th Cir. 1991) (“We further note that this court lacks

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jurisdiction to issue a writ of mandamus to a state court.”); Clark v. Washington, 366 F.2d 678,

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681 (9th Cir. 1966) (“The federal courts are without power to issue writs of mandamus to direct

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state courts or their judicial officers in the performance of their duties[.]”); see also Newton v.

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Poindexter, 578 F. Supp. 277, 279 (C.D. Cal. 1984) (§ 1361 has no application to state officers or

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employees).

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The proper remedy for a state prisoner challenging any aspect of his state custody is to file

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a federal habeas petition pursuant to 28 U.S.C. § 2254. White v. Lambert, 370 F.3d 1002, 1009-

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10 (9th Cir. 2004).

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Accordingly, it is ORDERED that petitioner’s request for leave to proceed in forma

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pauperis is granted, and it is hereby RECOMMENDED that the petition for a writ of mandamus

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be dismissed for lack of jurisdiction.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. Failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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DATED: April 14, 2014.

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