Brandon v. Board of Prison Terms et al

Filing 6

ORDER DISMISSING CASE, Granting 4 MOTION for Leave to Proceed in forma pauperis filed by Jeremy Christopher Brandon. Signed by Judge Charles R. Breyer on 11/5/2012. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 11/7/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JEREMY C. BRANDON, T-79759,
Petitioner,

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vs.
BOARD OF PRISON TERMS, et al.,
Respondent(s).

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No. C 12-5398 CRB (PR)
ORDER OF DISMISSAL
(Docket #4)

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Petitioner, a prisoner at Pleasant Valley State Prison (PVSP) in Coalinga,

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California, has filed a pro se petition for a writ of mandate compelling the

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California Board of Prison Terms to "make a determination whether [petitioner's]

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sentence was obtained without foundation or drop the alleged parole violation"

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charge against him. Docket #1 at 7. Petitioner also has filed a motion to proceed

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in forma pauperis under 28 U.S.C. § 1915 (docket #4) which, based solely on his

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affidavit of poverty, is granted.

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The petition for a writ of mandate is DISMISSED because it is well

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established that federal district courts are without power to issue mandamus to

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direct state courts, state judicial officers, or other state officials in the

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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 action is frivolous as a matter of

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law. See Demos v. U.S. District Court, 925 F.2d 1160, 1161-62 (9th Cir. 1991);

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Clark v. Washington, 366 F.2d 678, 681 (9th Cir. 1966).

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To the extent petitioner seeks to challenge the fact or duration of his

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confinement, his sole remedy in federal court is a petition for a writ of habeas

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corpus under 28 U.S.C. § 2244 after exhausting state judicial remedies. See

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Calderon v. Ashmus, 523 U.S. 740, 747 (1998).

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The clerk shall terminate all pending motions as moot, enter judgment in

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accordance with this order and close the file.

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SO ORDERED.

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DATED: November 5, 2012

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CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\OTHER.12\Brandon, J.12-5398.dismissal.wpd

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