Kilmer v. California State Supreme Court

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 FREDERICK D. KILMER, Case No. 21-cv-06567-HSG 8 Petitioner, ORDER OF DISMISSAL 9 v. 10 CALIFORNIA STATE SUPREME COURT, [11] Respondent. [12] 13 Petitioner, a California inmate housed at California Correctional Institution, has filed a writ 14 of mandamus,1 against the California Supreme Court, alleging that the California Supreme Court 15 failed to carry out its clear, present and ministerial duty to abide by state and federal law because 16 its July 21, 2021 denial of his state habeas petition “completely ignored the Mandatory Legislative 17 Laws, case laws per the Ca. Supreme Court own rulings, and the case laws per the United States 18 Supreme Court, thereby denying Petitioner his Constitutional Due Process Rights per the 14th 19 Amendment.” Dkt. No. 1 at 1-2. Petitioner requests that a writ of mandate be issued directing the 20 California Supreme Court to “vacate its erroneous ruling and issue an order for the Ca. State 21 Supreme Court to issue a new order vacating Petitioners sentence, and ordering the Superior Court 22 of San Francisco to Resentence Petitioner according to the law as directed per PC 1170.9 and PC 23 1170.91,” or, in the alternative, that a writ of mandate be issued ordering the California Supreme 24 Court to show cause why Petitioner is not entitled to relief. Dkt. No. 1 at 5. 25 Federal district courts are without power to issue mandamus to direct state courts, state 26 judicial officers, or other state officials in the performance of their duties. A petition for a writ of [27] 1 mandamus to compel a state court or official to take or refrain from some action is frivolous as a 2 matter of law. See Demos v. U.S. District Court, 925 F.2d 1160 , 1161-62 (9th Cir. 1991) 3 (imposing no filing in forma pauperis order); Clark vy. Washington, 366 F.2d 678, 681 (9th Cir. 4 1966) (attorney contested disbarment and sought reinstatement); Dunlap v. Corbin, 532 F. Supp. 5 183, 187 (D. Ariz. 1981) (plaintiff sought order from federal court directing state court to provide 6 speedy trial), aff’d without opinion, 673 F.2d 1337 (9th Cir. 1982); Newton v. Poindexter, 578 F. 7 Supp. 277, 279 (C.D. Cal. 1984) (§ 1361 has no application to state officers or employees); see 8 also In re Campbell, 264 F.3d 730, 731-32 (7th Cir. 2001) (denying petition for writ of mandamus 9 that would order state trial court to give petitioner access to certain trial transcripts which he 10 sought in preparation for filing state post-conviction petition; federal court may not, as a general 11 rule, issue mandamus to a state judicial officer to control or interfere with state court litigation). 12 || Accordingly, this action is DISMISSED as frivolous as a matter of law and all pending motions 5 13 || are DENIED as moot.” IT IS SO ORDERED. 3 15 Dated: 2/16/2022 Alapwrd & Mbt. HAYWOOD S. GILLIAM, JR. 17 United States District Judge [26] 07 > Petitioner has requested leave to amend the writ of mandamus to incorporate recently passed laws that entitle him to resentencing and invalidating his conviction. Dkt. No. 14. This 28 amendment would not rectify the deficiency in this action. This action must be dismissed as frivolous as a matter of law. See Demos, 925 F.2d at 1161-62.