Gomez v. Unknown

Full title: LEROY GOMEZ, Petitioner, v. UNKNOWN, Respondent.

Court: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Date published: Jul 16, 2020

Case No. 1:20-cv-00346-NONE-JDP (E.D. Cal. Jul. 16, 2020)

Opinion

Case No. 1:20-cv-00346-NONE-JDP

07-16-2020

LEROY GOMEZ, Petitioner, v. UNKNOWN, Respondent.

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR LACK OF JURISDICTION

(Doc. No. 10)

Petitioner Leroy Gomez, a pretrial detainee facing criminal prosecution in state court, proceeding without counsel here, has petitioned this court for a writ of mandamus directing the Kern County Superior Court to review his claim of vindictive prosecution against the prosecutor who handled his preliminary hearing in state court. (Doc. No. 1.) This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On May 18, 2020, the assigned magistrate judge issued findings and recommendations construing the petition as a motion for a writ of mandamus brought under the All Writs Act, 28 U.S.C. § 1651, and recommending that the petition be dismissed for lack of jurisdiction because, generally, a federal court cannot issue a writ of mandamus commanding action by a state or its agencies. (Doc. No. 10.) The magistrate judge also recommended denying a certificate of appealability. (Id.) The findings and recommendations were served on petitioner and contained notice that objections thereto were due within 14 days of service. (Id.) Petitioner did not file any objections and the time to do so has passed.

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court concludes that the findings and recommendations are supported by the record and proper analysis.

Accordingly:

1. The findings and recommendations issued on May 18, 2020 (Doc. No. 10) are adopted in full;

2. The petition for writ of mandamus (Doc. No. 1) is dismissed;

3. No certificate of appealability will issue; and

4. The Clerk of Court is directed to assign a district judge to this case for the purposes of closure and to close this case.

IT IS SO ORDERED.

Dated: July 16 , 2020

/s/_________

UNITED STATES DISTRICT JUDGE