Brown (ID 64640) v. Kansas, State of
MEMORANDUM AND ORDER ENTERED: The petition for mandamus is dismissed. Signed by U.S. Senior District Judge Sam A. Crow on 10/27/17. Mailed to pro se party Charles E. Brown by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHARLES E. BROWN,
CASE NO. 16-3075-SAC
STATE OF KANSAS,
MEMORANDUM AND ORDER
This matter is a petition for mandamus filed by a prisoner in
state custody. Petitioner seeks mandamus relief under 28 U.S.C. §
1651 to require the District Court of Wyandotte County, Kansas, the
Kansas Bureau of Investigation (KBI), and the Federal Bureau of
Investigation (FBI) to comply with K.S.A. 21-2512.
K.S.A. 21-2512 allows a person in state custody to seek
post-conviction DNA testing of items in the actual or constructive
possession of the state where the items were not previously tested
or where additional testing of items that can be tested with new
techniques could provide a reasonable likelihood of more accurate
results. K.S.A. 2016 Supp. 21-2512(a)(3). This request is addressed
to the trial court. K.S.A. 21-2512(a).
The All Writs Act allows federal courts to issue “all writs
necessary or appropriate in aid of their respective jurisdictions.”
28 U.S.C. § 1651(a). However, the power of a federal court to issue
relief under the Act is contingent upon its subject matter
jurisdiction over the case or controversy. United States v. Denedo,
556 U.S. 904, 911 (2009). See Commercial Sec. Bank v. Walker Bank &
Trust Co., 456 F.2d 1352 1355 (10th Cir. 1972)(the All Writs Act “does
not operate to confer jurisdiction”).
The federal mandamus statute, 28 U.S.C. § 1361, grants the
federal district courts “original jurisdiction of any action in the
nature of mandamus to compel an officer or employee of the United
States or any agency thereof to perform a duty owed to the plaintiff.”
Mandamus relief is available where the petitioner shows (1) a clear
right to the relief sought; (2) a plainly defined, peremptory duty
of the respondent to perform the act sought; and (3) that no other
available remedy exists. Johnson v. Rogers, 917 F.2d 1283, 1285 (10th
Cir. 1990). The right to the remedy sought must be “clear and
A suit seeking mandamus relief under this provision must name
a federal officer or employee as the respondent. See Amisub (PSL),
Inc. v. Colorado Dept. of Soc. Servs., 879 F.2d 789, 790 n. 2 (10th
Cir. 1989). Therefore, petitioner’s request for mandamus relief
against the state district court and the KBI must be dismissed. See
Rivers v. King, 23 Fed. Appx. 905, 908 n. 4 (10th Cir. Nov. 21,
2001)(“[T]his court has no jurisdiction to mandamus state officials
because the statutory power to grant such writs is provided only
against federal officials.”)
Likewise, while the FBI is a federal agency, the state statute
which petitioner identifies as authorizing relief does not identify
any duty by the FBI or any other federal official. Rather, the statute
provides a specific remedy allows a prisoner to seek testing through
a request in the state district court. Because the present petition
states no arguable right to performance of any duty by the FBI, this
matter must be dismissed.
IT IS, THEREFORE, BY THE COURT ORDERED the petition for mandamus
IT IS SO ORDERED.
This 27th day of October, 2017, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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