Rivera v. State of Minnesota

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATION: The Report and Recommendation 5 is ACCEPTED; Petitioner's Objections [6, 7] are OVERRULED; Petitioner's Motion for Leave to Proceed In Forma Pauperis 2 and Motion for a Waiver to File the Number of Copies 4 are DENIED as moot; This action is DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. (Written Opinion) Signed by Judge Katherine M. Menendez on 9/19/2022.(BJP)

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Alveto Rivera,

Case No. 22-cv-1129 (KMM/BRT)
Petitioner,

v.

ORDER

State of Minnesota,
Respondent.

Petitioner Alveto Rivera objects to Magistrate Judge Becky R. Thorson’s
recommendation that this case be dismissed without prejudice for lack of jurisdiction.
[Report and Recommendation (“R&R”), ECF No. 5; Objections, ECF Nos. 6, 71]. The
Court reviews de novo any portion of the R&R to which specific objections are made. 28
U.S.C. § 636(b)(1); D. Minn. LR 72.2(b). In the absence of objections, the Court reviews
the R&R for clear error. Nur v. Olmsted County, 563 F. Supp. 3d 946, 949 (D. Minn. 2021)
(citing Fed. R. Civ. P. 72(b) and Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (per
curiam)). District court judges “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); Fed.

Mr. Rivera’s submissions at docket entries 6 and 7 appear to be substantially the same
document comprising his objections to the R&R.
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R. Civ. P. 72(b)(3). Applying these standards, the Court concludes that the Magistrate
Judge’s R&R contains no error, clear or otherwise.
Mr. Rivera is currently serving a 270-month prison sentence after pleading guilty
to a state charge of criminal sexual conduct. State v. Rivera, No. 27-CR-08-38132 (Minn.
Dist. Ct.). The R&R explains that Mr. Rivera’s mandamus petition asks this Court to
force the state trial court to “enforce the terms of [Rivera’s] plea agreement.” [R&R at 2
(citing ECF No. 1 at 1)]. Mr. Rivera alleges that although his plea agreement was for
only a 270-month sentence, the trial judge imposed an additional term of lifetime
supervised release after his prison sentence, as well as lifetime sex-offender registration.
[Id. (citing ECF No. 1 at 3)]. The R&R concludes that the Court lacks jurisdiction to
provide the relief Mr. Rivera seeks under either statutory provision relied upon in the
Petition—the mandamus statute, 28 U.S.C. § 1361, is unavailing because it applies only
to federal officials; and the All Writs Act, 28 U.S.C. § 1651(a), is of no help to Mr. Rivera
because a writ to instruct a state court to perform judicial functions is not a writ in aid
of this Court’s proper jurisdiction. [Id. at 3–4].
Mr. Rivera’s objections to the R&R are straightforward: he argues that the
Magistrate Judge erred as a matter of law in concluding that neither § 1361 nor § 1651
confers jurisdiction in this matter. Mr. Rivera asserts that he is entitled to a writ of
mandamus because he has given the Minnesota courts an opportunity to correct what
he sees as an illegal sentence and to enforce the terms of the original plea agreement,

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and they have failed to do so. [ECF No. 6 at 3]. Unfortunately for Mr. Rivera, the R&R
got it right on both counts.
First, take § 1361. It provides that district courts “shall have 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.” Mr. Rivera’s
request for a writ of mandamus does not ask the Court to compel an officer or employee
of the United States or any federal agency to perform a duty owed to him. Instead, he
asks the Court to issue the writ to compel a state official to act. This the Court cannot do
under § 1361. Longie v. Spirit Lake Tribe, 400 F.3d 586, 591 (8th Cir. 2005) (rejecting the
argument that the district court had jurisdiction over the plaintiff’s requests for a writ of
mandamus under 28 U.S.C. § 1361 because “he ha[d] not named a federal officer as a
defendant”); Udoh v. Clerk of the Minn. App. Cts., No. 21-CV-1031 (PJS/HB), 2021 WL
2010778, at *1 (D. Minn. May 20, 2021) (“[A] court may only issue a writ of mandamus
under § 1361 to compel a federal officer, employee, or agency to perform a duty owed,
and all of the respondents in this case are state actors.”); Hebert v. Winona County, 111 F.
Supp. 3d 970, 975–76 (D. Minn. 2015) (“[T]his Court lacks the power to issue a writ of
mandamus compelling a state actor to act.”).
The conclusion is the same when applying the All Writs Act. That statute
provides that “[t]he Supreme Court and all courts established by Act of Congress may
issue all writs necessary or appropriate in aid of their respective jurisdictions. . . .” 28

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U.S.C. § 1651(a). This provision does not allow Mr. Rivera to obtain the relief he seeks
because federal courts do not have the power to issue a writ of mandamus to a state
court. In re Trammell, 725 F. App’x 193, 194 (3rd Cir. 2018) (per curiam) (explaining that
the court lacked the authority to address the petitioner’s request for a writ of
mandamus to void a sheriff’s sale of a property and collecting cases from other circuits);
Udoh, 2021 WL 2010778, at *1 (explaining that the petitioner could not obtain a writ of
mandamus under § 1651 because the district court “has no authority to issue a writ of
mandamus telling a state court how it must perform its judicial duties”).
The cases Mr. Rivera cites in his Objection do not suggest otherwise. For
example, in Santobello v. New York, the Supreme Court vacated the defendant’s sentence
and remanded the case for resentencing when a prosecutor violated the plea agreement,
but there the Court accepted the case on direct appeal from the New York Court of
Appeals pursuant to 28 U.S.C. § 1257. 404 U.S. 257 (1971). Santobello did not involve a
request for a writ of mandamus at all. Similarly, the court in United States v. Hallam
considered whether a lower court improperly set aside a plea agreement, but said
nothing about a federal court’s authority to order a state court to take particular action.
472 F.2d 168 (9th Cir. 1973). And while it is true that both La Buy v. Howes Leather
Company, 352 U.S. 249 (1957), and Schalgenhauf v. Holder, 379 U.S. 104 (1964), involve
writs of mandamus, they are examples of the Supreme Court issuing a writ ordering a
lower federal court to take particular action—neither involved a state actor. These cases

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simply do not undermine the correctness of the Magistrate Judge’s conclusion that this
Court lacks jurisdiction to issue a writ of mandamus to compel the state court to take a
particular act with respect to his plea agreement.
Finally, because the Court agrees with the R&R that because jurisdiction is
lacking, Mr. Rivera’s other requests for relief are moot. [R&R at 4].
Accordingly, IT IS HEREBY ORDERED that:
1. The Report and Recommendation [ECF No. 5] is ACCEPTED;
2. Petitioner’s Objections [ECF Nos. 6, 7] are OVERRULED;
3. Petitioner’s Motion for Leave to Proceed in Forma Pauperis [ECF No. 2] and
Motion for a Waiver to File the Number of Copies [ECF No. 4] are DENIED
as moot; and
4. This action is DISMISSED WITHOUT PREJUDICE for lack of subject matter
jurisdiction.
Let Judgment be entered accordingly.

Date: September 19, 2022
s/Katherine Menendez
Katherine Menendez
United States District Judge

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