(HC) Biagas v. State of California ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VINCENT JAMES BIAGAS, SR., No. 2:21-cv-0109 CKD P 12 Petitioner, 13 v. ORDER AND 14 STATE OF CALIFORNIA, et al., FINDINGS AND RECOMMENDATIONS 15 Respondents. 16 17 Petitioner, a California prisoner, has filed a document titled “Petition for Writ of 18 Mandate.” He attacks his criminal conviction and sentence. When a state prisoner challenges the 19 legality of his custody and the relief he seeks is the determination of his entitlement to an earlier 20 or immediate release, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 21 411 U.S. 475, 500 (1973). Furthermore, it appears petitioner seeks relief under “Article 440” a 22 provision of New York law (ECF No. 1 at 4) which is not applicable in any respect in a federal or 23 California court. To the extent petitioner seeks relief pursuant to procedures available in 24 California courts, those procedures are likewise not applicable in federal court. 25 In light of the foregoing, the court will recommend that petitioner’s “Petition for a Writ of 26 Mandate” be dismissed. 27 ///// 28 ///// 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Petitioner’s request to proceed in forma pauperis (ECF No. 8) is granted; and 3 2. The Clerk of the Court assign a district court judge to this case. 4 IT IS HEREBY RECOMMENDED that: 5 1. Petitioner’s “Petition for a Writ of Mandate” be dismissed; and 6 2. This case be closed. 7 These findings and recommendations are submitted to the United States District Judge 8 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 9 | after being served with these findings and recommendations, petitioner may file written 10 | objections with the court. Such a document should be captioned “Objections to Magistrate 11 || Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections 12 | within the specified time may waive the right to appeal the District Court’s order. Martinez v. 13 | Yist, 951 F.2d 1153 (9th Cir. 1991). 14 | Dated: February 9, 2021 CA rd kt / (g—, 15 CAROLYN K DELANEY 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 | , biag0109.frs 21 22 23 24 25 26 27 28