Opinion
No. 2: 11-cv-3066 KJN P
01-06-2012
RICHARD v. ROOD, Petitioner, v. WARDEN SWARTHOUT, Respondent.
ORDER
Petitioner, a state prisoner proceeding without counsel, has filed a petition for a writ of mandamus pursuant to 28 U.S.C. § 1651, together with an application to proceed in forma pauperis. Petitioner has consented to the jurisdiction of the undersigned.
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
In this action, petitioner requests that the court order the California Court of Appeal, Superior Court or his state appellate attorney to provide him with copies of the transcripts and all documents from his state criminal action. Petitioner apparently seeks those documents so that he may prepare his federal habeas corpus petition.
"A writ of mandamus is an extraordinary or drastic remedy, used only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." DeGeorge v. U.S. District Court, 219 F.3d 930, 934 (9th Cir. 2000) (internal citation omitted.) Accordingly, federal courts lack jurisdiction to issue a writ of mandamus to a private party. See id. Federal courts also lack jurisdiction to issue a writ of mandamus to a state court. Demos v. United States District Court for the E. District of Washington, 925 F.2d 1160, 1161 (9th Cir. 1991), citing 28 U.S.C. § 1651.
As indicated above, this court does not have the authority to issue a writ of mandamus ordering a state court or petitioner's appellate attorney to provide him with copies of his transcripts. Accordingly, petitioner's petition for writ of mandamus is denied. See also In re Campbell, 264 F.3d 730, 731-32 (7th Cir. 2001) (finding no federal mandamus jurisdiction to direct state trial court to provide petitioner with transcripts for preparing state habeas petition).
If petitioner files a habeas corpus petition in federal court, respondent will be directed to file a response accompanied by all transcripts or other relevant documents. Petitioner is also cautioned of the one year statute of limitations for filing habeas corpus petitions set forth at 28 U.S.C. § 2244(d)(1).
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's application to proceed in forma pauperis is granted;
2. The petition for writ of mandamus is denied.
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KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE