Orosco v. U.S Division Court

Filing 3

ORDER signed by Magistrate Judge Gregory G. Hollows on 4/06/17 ordering petitioner shall submit, within thirty days from the date of this order, an affidavit insupport of his request to proceed in forma pauperis or the appropriate filing fee. The Clerk of the Court is directed to send petitioner a copy of the in forma pauperisform used by this district. Petitioner may amend his petition in the manner described above within 45 days of theissuance of this Order if he so desires. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL OROSCO,

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No. 2:17-cv-0627 GGH P

Petitioner,
v.

ORDER

U.S. DIVISION COURT,
Respondent.

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Petitioner, a county prisoner proceeding pro se, has filed an application for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has not, however, filed an in forma

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pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a).

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Petitioner will be provided the opportunity to either submit the appropriate affidavit in support of

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a request to proceed in forma pauperis or submit the appropriate filing fee.

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As a threshold matter, however, the court must address the substance of the pleading filed

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here. Petitioner seeks only the production of a document in the possession of the District

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Attorney of San Joaquin County where he was convicted. ECF No. 1. Petitioner is apprised that

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the federal courts are without power to issue mandamus, or other documents of compulsion, to

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direct state courts, state judicial officers, or other state officials in their to act or refrain from

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acting within the powers of those offices. Demos v. U.S. District U.S. District Court, 925 F/2d

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1160, 1161 (9th Cir. 1966) citing 28 U.S.C. § 1651 and noting “that this court lacks jurisdiction to
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issue a writ of mandamus to a state court”); Clark v Washington, 366 F.2d 678, 681 (9th

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Cir. 1955)(“The federal courts are without power to issue writs of mandamus to direct state courts

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or their judicial officers in the performance of their duties[.]; see also Newton v. Poindexter, 578

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

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Dunlap v. Corbin, 523 F.Supp. 183, 187 (D.Ariz. 1981)(finding that the court could not issue a

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writ of mandamus directing state agency to provide plaintiff with a trial, aff’d without opinion,

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673 F.2d 1337 (9th Cir. 1982); Umbenhower v. Schwarzenneger, No. C 10-01198 JW (PR), 2010

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WL 4942512 at 1 (E.D. Cal. Nov. 24, 2010). Because an effort to extract discovery documents

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from a state official has the same compulsory aspect as does a writ of mandamus, the court cannot

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act on petitioner’s complaint as it now stands.
A habeas corpus petition, on the other hand, purports to challenge the sufficiency of the

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trial petitioner received below and whether it conforms to the federal Constitutional limits as

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imposed by the United States Supreme Court in its published decisions and the procedural

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requirements found in The Antiterrorism and Effective Death Penalty Act [“AEDPA”], focusing

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specifically on 28 U.S.C. section 2254(d). If plaintiff believes he has a basis for a true habeas, the

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court will permit him to file an amended petition for relief pursuant to AEDPA.

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In light of the foregoing, IT IS HEREBY ORDERED THAT:

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1. Petitioner shall submit, within thirty days from the date of this order, an affidavit in

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support of his request to proceed in forma pauperis or the appropriate filing fee; petitioner’s

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failure to comply with this order will result in the dismissal of this action;

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2. The Clerk of the Court is directed to send petitioner a copy of the in forma pauperis
form used by this district;
3. Petitioner may amend his petition in the manner described above within 45 days of the

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issuance of this Order if he so desires.

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IT IS SO ORDERED.

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Dated: April 6, 2017
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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