United States District Court, E.D. California
ORDER AND FINDINGS & RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.
is a state prisoner, proceeding without counsel. On September
17, 2019, petitioner filed a petition for writ of mandate
directed to the Court of Appeals for the Ninth Circuit, but
filed in the Northern District of California, and transferred
to the Eastern District of California. Petitioner claims to
seek relief under 18 U.S.C. § 3771, and names as
respondents both the California Department of Corrections and
Rehabilitation, and the Superior Court for the County of
Sacramento. (ECF No. 1 at 1.)
discussed below, the petition should be dismissed for lack of
for In Forma Pauperis Status
seeks leave to proceed in forma pauperis. 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 is granted.
See 28 U.S.C. § 1915(a).
seeks a writ of mandate directed to the respondent court,
alleging a violation of crime victims' rights under 18
U.S.C. § 3771. (ECF No. 1 at 1.) Petitioner claims that
on September 17, 2018, and November 20, 2018, petitioner
filed a petition for re-designation of sentence and affidavit
of truth. He states that on December 21, 2018, May 24, 2019,
and June 3, 2019, respondent ignored petitioner's
requests. Petitioner requests an “emergency
order” releasing his “body within 72 hours to the
National Association of Civilian Chapter pursuant to 18
U.S.C. § 3771 in compliance without prejudice UCC
1-308.” (ECF No. 1 at 3.) In the accompanying
memorandum of points and authorities, petitioner relies on
California Code of Civil Procedure §§ 1085 and
1086, as well as various other cases filed in California
courts. (ECF No. 1 at 4.)
Sacramento County Superior Court, No. 09F06018, a jury found
petitioner guilty of misdemeanor resisting arrest, deadlocked
on the remaining counts, and the court declared a mistrial as
to the remaining felony counts. Clark v. Lewis, No.
12-cv-2687 TLN GGH (E.D. Cal. Apr. 25, 2014 Findings and
Recommendations) (ECF No. 32 at 2). Subsequently, petitioner
pled no contest to two counts of second degree robbery and
one count of evading a police officer, and on July 15, 2011,
was sentenced to six years in state prison. Id. (ECF
No. 32 at 3).
filed a federal petition for writ of habeas corpus
challenging the 2011 conviction, which was denied on the
merits on August 5, 2014. Clark v. Lewis, No.
12-cv-2687 TLN GGH (E.D. Cal.).
February 16, 2018, in Sacramento County Superior Court No.
17FE001757, a jury found petitioner guilty of evading a
police officer/reckless driving (ECF No. 1 at 24-25), and
petitioner was sentenced to a prison term of six years.
Clark v. California Department of Corrections and
Rehabilitation, No. 2:18-cv-2948 JAM AC (E.D. Cal.) (ECF
No. 1 at 11 (abstract of judgment).)
petitioner filed both a petition for writ of habeas corpus
and a petition for writ of mandate under the All Writs Act,
28 U.S.C. § 1651. Clark, No. 2:18-cv-2948 JAM
AC. On June 19, 2019, the district court dismissed the case
for lack of jurisdiction. Id.
December 21, 2018, the Sacramento County Superior Court
denied petitioner's requests for re-designation of
sentence in both Nos. 09F06018 and 17FE001757 “due ...