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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 ALEXANDER JACOME, Case No. 1:21-cv-01816-SKO

12 Petitioner, ORDER DIRECTING CLERK OF COURT

TO ASSIGN DISTRICT JUDGE

13 v.

FINDINGS AND RECOMMENDATION TO

14 CALIFORNIA DEPARTMENT OF DISMISS PETITION FOR WRIT OF

CORRECTIONS AND REHABILITATION, MANDAMUS

15 Respondent. 16

17 18 On December 3, 2021, Petitioner filed the instant petition for writ of mandamus pursuant 19 to 28 U.S.C. § 1361. Petitioner claims, inter alia, that prison officials at Wasco State Prison have 20 failed to properly compute his sentence credits. The petition for writ of mandamus fails to state 21 a claim. To the extent Petitioner’s claims may sound in habeas corpus, they are unexhausted. 22 Therefore, the Court will recommend the petition be DISMISSED. 23 DISCUSSION 24 I. Mandamus Relief 25 The All Writs Act, codified at 28 U.S.C. § 1651(a), provides that “[t]he Supreme Court 26 and all courts established by Act of Congress may issue all writs necessary or appropriate in aid 27 of their respective jurisdictions and agreeable to the usages and principles of law.” The federal 1 jurisdiction of any action in the nature of mandamus to compel an officer or employee of the 2 United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. 3 Mandamus relief is only available to compel an officer of the United States to perform a duty if 4 (1) the petitioner's claim is clear and certain; (2) the duty of the officer “is ministerial and so 5 plainly prescribed as to be free from doubt,” Tagupa v. East-West Center, Inc., 642 F.2d 1127, 6 1129 (9th Cir.1981) (quoting Jarrett v. Resor, 426 F.2d 213, 216 (9th Cir.1970)); and (3) no other 7 adequate remedy is available. Piledrivers' Local Union No. 2375 v. Smith, 695 F.2d 390, 392 8 (9th Cir.1982). 9 Mandamus relief is not available here because state prison officials are not officers, 10 employees or an agency of the United States. Title 28 U.S.C. § 1651(a) does not invest a federal 11 district court with the power to compel performance of a state court, judicial officer, or another 12 state official's duties under any circumstances. Pennhurst State Sch. & Hosp. v. Halderman, 465 13 U.S. 89, 106 (1984) (11th Amendment prohibits federal district court from ordering state officials 14 to conform their conduct to state law). Thus, a petition for mandamus to compel a state official 15 to take or refrain from some action is frivolous as a matter of law. Demos v. U.S. District Court, 16 925 F.2d 1160, 1161–72 (9th Cir.1991); Robinson v. California Bd. of Prison Terms, 997 F.Supp. 17 1303, 1308 (C.D.Cal.1998) (federal courts are without power to issue writs of mandamus to direct 18 state agencies in the performance of their duties); Dunlap v. Corbin, 532 F.Supp. 183, 187 19 (D.Ariz.1981) (plaintiff sought order from federal court directing state court to provide speedy 20 trial), aff'd without opinion, 673 F.2d 1337 (9th Cir.1982). 21 II. Habeas Relief 22 A habeas corpus petition is the correct method for a prisoner to challenge the “legality or 23 duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser 24 v. Rodriguez, 411 U.S. 475, 485 (1973)). Petitioner is challenging the computation of his 25 sentence. Therefore, he is challenging the duration of his confinement, and his claims sound in 26 habeas corpus. 27 A. Exhaustion Requirement 1 a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). 2 The exhaustion doctrine is based on comity to the state court and gives the state court the initial 3 opportunity to correct the state’s alleged constitutional deprivations. Coleman v. Thompson, 501 4 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). 5 A petitioner can satisfy the exhaustion requirement by providing the highest state court 6 with a full and fair opportunity to consider each claim before presenting it to the federal court. 7 Duncan v. Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court 8 was given a full and fair opportunity to hear a claim if the petitioner has presented the highest 9 state court with the claim’s factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney 10 v. Tamayo-Reyes, 504 U.S. 1 (1992) (factual basis). 11 Additionally, the petitioner must have specifically told the state court that he was raising a 12 federal constitutional claim. Duncan, 513 U.S. at 365-66. In Duncan, the United States Supreme 13 Court reiterated the rule as follows:

14 In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners “fairly presen[t]” federal claims to the state courts 15 in order to give the State the “opportunity to pass upon and correct alleged violations of the prisoners' federal rights” (some internal quotation marks omitted). 16 If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners 17 are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due 18 process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. 19 20 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating:

21 Our rule is that a state prisoner has not “fairly presented” (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those 22 claims were based on federal law. See Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held 23 that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is “self- 24 evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7 . . . (1982), or the underlying claim would be decided under 25 state law on the same considerations that would control resolution of the claim on federal grounds. Hiivala v. Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson 26 v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . .

27 In Johnson, we explained that the petitioner must alert the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal 1 law is. 2 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000), as amended by Lyons v. Crawford, 3 247 F.3d 904, 904-5 (9th Cir. 2001). 4 It appears that Petitioner has not presented any of the claims to the California Supreme 5 Court as required by the exhaustion doctrine. This is deduced from the fact that Petitioner is 6 proceeding with a petition for writ of mandamus and Petitioner makes no mention of any 7 proceedings in the state courts. Failure to present claims for federal habeas relief to the California 8 Supreme Court will result in dismissal. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 9 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). The Court cannot consider a petition 10 that has not been exhausted. Rose v. Lundy, 455 U.S. 509, 521-22 (1982). 11 III. Other Claims 12 Petitioner also raises a number of other complaints which are not cognizable. Petitioner 13 claims prison officials have destroyed, discarded or interfered with his mail, and as a result, he 14 has not received his “stimulus money” as mandated by the “American Rescue Plan.” He further 15 asks that prison officials be compelled to replace all of his legal materials and writing paper. 16 A civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to 17 challenge the conditions of confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); 18 Preiser, 411 U.S. at 499. Petitioner’s civil rights claims are not cognizable in a federal habeas 19 action and must be dismissed. Petitioner must seek relief for these miscellaneous complaints by 20 way of a civil rights action. 21 ORDER 22 IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a District 23 Judge to this case. 24 RECOMMENDATION 25 Accordingly, the Court RECOMMENDS that this action be DISMISSED. This Findings 26 and Recommendation is submitted to the assigned District Court Judge, pursuant to the 27 provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within twenty-one (21) days after 1 service of the Findings and Recommendation, Petitioner may file written objections with the 2 Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 3 Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 4 U.S.C. § 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified 5 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 6 (9th Cir. 1991). 7

IT IS SO ORDERED.

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9 Dated: January 4, 2022 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

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