Kelley v. Ndoh

Filing 24

ORDER signed by Magistrate Judge Gregory G. Hollows on 3/23/2017 DENYING 23 Motion to Compel. (Donati, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN ALAN KELLEY,

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No. 2:16-cv-01088 MCE GGH

Petitioner,

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v.

ORDER

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JOE A. LIZARRAGA,Warden,

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Respondent.

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Petitioner filed a Motion to Compel the Clerk of the Superior Court to transmit an exhibit

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to this court, i.e., to produce a CD that was placed in evidence during his trial. See ECF # 23.

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This request is equivalent to a mandamus action to compel an officer or employee of the United

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States to perform a non-discretionary duty. 28 U.S.C. § 1361. However, federal courts are

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without power to issue mandamus to direct state courts, state judicial officers, or other state

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officials in the performance of their duties. A petition for a writ of mandamus to compel a state

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court or official to take or refrain from some actions is therefore frivolous as a matter of law. See

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Demos v. U.S. District Court, 925 F.2d 1160, 1161 (9th Cir. 1966) noting “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. 1955)(“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[...]”

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IT IS THEREFORE ORDERED that, in light of the fact that a Motion to Compel

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would have the same potential effect as a writ of mandamus, this court must DENY petitioner’s

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motion.

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IT IS SO ORDERED.
Dated: March 23, 2017
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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