(HC) Gomez v. Unknown ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEROY GOMEZ, Case No. 1:20-cv-00346-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR LACK OF 13 v. JURISDICTION 14 UNKNOWN, OBJECTIONS DUE IN FOURTEEN DAYS 15 Respondent. ECF No. 1 16 ORDER DIRECTING CLERK OF COURT TO ASSIGN CASE TO DISTRICT JUDGE 17 18 Petitioner Leroy Gomez, a state pretrial detainee without counsel, petitioned for a writ of 19 mandamus under 28 U.S.C. § 1651.1 ECF No. 1. Petitioner seeks an order directing the Superior 20 Court of Kern County to review his claim of vindictive prosecution against the prosecutor at his 21 preliminary hearing. ECF No. 1 at 1-2. On April 7, 2020, we ordered petitioner to show cause 22 within thirty days why his petition should not be dismissed for lack of jurisdiction. ECF No. 8. 23 More than thirty days have passed, and petitioner has not responded to our order. We recommend 24 that the petition be dismissed for lack of jurisdiction. 25 26 27 1 Although petitioner does not identify the federal statute under which he seeks relief, considering the form of relief he seeks, we will construe his filing as a petition for a writ of mandamus under 28 the All Writs Act, 28 U.S.C. § 1651. 1 Discussion 2 Under 28 U.S.C. § 1651, federal courts may issue writs “in aid of their respective 3 jurisdictions.” This court has original jurisdiction under 28 U.S.C. § 1361 to issue writs of 4 mandamus. That jurisdiction is limited, however, to writs of mandamus to “compel an officer or 5 employee of the United States or any agency thereof to perform a duty.” 28 U.S.C. § 1361. 6 Absent certain rare exceptions, a federal court cannot issue a writ of mandamus commanding 7 action by a state or its agencies. See, e.g., Demos v. U.S. Dist. Court for Eastern Dist. of Wash., 8 925 F.2d 1160 (9th Cir. 1991) (explaining that “to the extent that [petitioner] attempts to obtain a 9 writ in this court to compel a state court to take or refrain from some action, the petitions are 10 frivolous as a matter of law”). Here, the petitioner seeks to compel a trial judge of a California 11 state court to review his vindictive prosecution claim. Because petitioner does not seek an order 12 compelling action on the part of the United States or any federal agency, this court lacks 13 jurisdiction over his petition. Therefore, we recommend that his petition be dismissed. 14 Certificate of Appealability 15 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 16 court’s dismissal of a petition; he may appeal only in limited circumstances. See 28 U.S.C. 17 § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 18 Cases requires a district court to issue or deny a certificate of appealability when entering a final 19 order adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 20 F.3d 1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner 21 makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 22 This standard requires the petitioner to show that “jurists of reason could disagree with the district 23 court’s resolution of his constitutional claims or that jurists could conclude the issues presented 24 are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord 25 Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial 26 showing of the denial of a constitutional right. Thus, we recommend that the Court decline to 27 issue a certificate of appealability. 28 wOASe £4. UVM TINY INR VR MVOC tO LOPE VV 1 | Findings and Recommendations 2 For the foregoing reasons, we recommend that the court dismiss the petition for lack of 3 | jurisdiction and decline to issue a certificate of appealability. These findings and 4 | recommendations are submitted to the U.S. district judge presiding over the case under 28 U.S.C. 5 | § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the service of the findings and 6 || recommendations, the parties may file written objections to the findings and recommendations 7 | with the court and serve a copy on all parties. That document must be captioned “Objections to 8 | Magistrate Judge’s Findings and Recommendations.” The presiding district judge will then 9 | review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 10 | Order 11 The clerk of court is directed to assign this case to a district judge for the purposes of 12 || reviewing these findings and recommendations. 13 4 IT IS SO ORDERED. 15 ( Caan Dated: _ May 18, 2020 16 UNI STATES MAGISTRATE JUDGE 17 18 | No. 206. 19 20 21 22 23 24 25 26 27 28