1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 THOMAS K. MILLS, Case No. 2:19-cv-05237-DDP-MAA 12 Petitioner, ORDER ACCEPTING REPORT 13 v. AND RECOMMENDATION OF UNITED STATES MAGISTRATE 14 S. MARSH, Associate Warden, JUDGE 15 Respondent. 16 17 18 Pursuant to

, the Court has reviewed the First Amended 19 Petition, the other records on file herein, and the Report and Recommendation of 20 the United States Magistrate Judge (“R&R”). (R&R, ECF No. 51). 21 The Court also has reviewed Petitioner’s objections to the Report and 22 Recommendation, which the Court received and filed on January 21, 2020 23 (“Objections”). (Objs., ECF No. 53.) As required by Federal Rule of Civil 24 Procedure 72(b)(3), the Court has engaged in de novo review of the portions of the 25 R&R to which Petitioner specifically has objected. 26 Petitioner contends that this federal court “can recommend [him] for 27 resentening [sic]” by completing a form addressed to the California Department of 28 Corrections and Rehabilitation (“CDCR”). (Id., at 2-3.) Petitioner submitted, on 1 the same day as his Objections, a “Template Exceptional Conduct Referral Letter 2 from Facility Staff (or Judge)[1] to CDCR in Sacramento.” (ECF No. 57, at 1.) 3 Petitioner adds, “Your Honor, you can recommend me for resentenceing [sic], if 4 you feel I qualify to be resentenced. By sending a letter to the Secretary, and also 5 the form. Or you can order resentenceing [sic].” (Id., at 2.) The Court interprets 6 this as a new request for relief outside the scope of a writ of habeas corpus—a 7 request for a recommendation from this federal court that CDCR resentence 8 Petitioner. First, the Court declines to exercise its discretion to entertain this new 9 request for relief, which first was raised in the Objections and concurrent filing. 10 See United States v. Howell,

(9th Cir. 2000); see also, e.g., Blunk 11 v. Ryan,

, 737 (9th Cir. 2018) (declining to consider “brand-new 12 stand-alone claim for relief that could have been raised long before the magistrate 13 judge considered [the petitioner’s] habeas petition” but instead was raised “for the 14 first time in [the] objections”). Second, even if the Court were to entertain 15 Petitioner’s new request for relief, as stated in the R&R (R&R, at 6), this federal 16 district court lacks authority to order or recommend that a state official take action 17 to recall Petitioner’s sentence. See

(conferring limited 18 jurisdiction over mandamus actions); Demos v. U.S. Dist. Court,

, 19 1161 (9th Cir. 1991) (“[T]his court lacks jurisdiction to issue a writ of mandamus to 20 a state court.”). Petitioner admits “that there are no constitutional issues in this 21 case.” (Objs., at 4.) Accordingly, because Petitioner has not alleged “that he is in 22 custody in violation of the Constitution or laws or treaties of the United States,” 23 federal habeas relief is inappropriate.

(a). 24 The Court finds no defect of law, fact, or logic in the R&R. The Court 25 concurs with and accepts the findings, conclusions, and recommendations of the 26 United States Magistrate Judge, and overrules the Objections. 27 1 This parenthetical denotes that Petitioner added this language in his own 28 handwriting. 1 The Court turns to Petitioner’s pending motions and requests. Petitioner has 2 || submitted myriad requests to lodge documents with the Court, apparently in support 3 || of his arguments that this federal court should direct the state courts or the CDCR 4 || to resentence him: 5 e “Request to Enter Rules Violation Report as Evidence on the Associate 6 Warden, C. Marsh, as an Attempt to Discredit Me and Hold Me in Prison.” 7 (ECF No. 48 (emphasis removed).) 8 e “Requesting The Court To Lodge These Resentenceing [sic] Papers For 9 Magistrate Judge Maria A. Audero’s Review, 16 Pages.” (ECF No. 54.) 10 e “Motion in Request To Enter Mental Health Records For Your Honors [sic] 11 Review And Consideration. Also My Disciplinary Hearing Results.” (ECF 12 No. 59.) 13 e “Request to Enter My Most Recent College Transcript for Your Honors [sic] 14 Review, And Consideration For An [sic] Recommendation For 15 Resentenceing [sic] To The Secretary Of CDCR.” (ECF No. 61.) 16 e “Request To Enter Appeal decision, And Release date Change Notices.” 17 (ECF No. 62.) 18 e “Request To Enter Current Legal Status Summary Sheet, For Review.” 19 (ECF No. 63.) 20 e “Request to enter Work Supervisor’s report, job performance report, and 21 assignment history reports as evidence for review and consideration for a 22 resentencing order to The Superior Court in Los Angeles by Judge Audero.” 23 (ECF Nos. 64 to 64-1.) 24 e “Request To Enter Another Recent Displinary [sic] Report From CDCR, For 25 Review. And Ella Baker Center Paper, And A CDC Form 695, For Judges 26 [sic] Review.” (ECF No. 70.) 27 | /// 28 | ///

1 e “Request To Enter The Disciplinary Hearing Results For The Judges [sic] 2 Review. Also A Resentenceing [sic] Letter, And A Request For Recall of 3 Commitment Form.” (ECF No. 71.) 4 e “Request To Enter An Inmate Monthly Time Log For Your Honors [sic] 5 Review And Consideration.” (ECF Nos. 72 to 72-1.) 6 e “Request To Enter Decision of Appeal Issue Dated 5/2/20.” (ECF No. 74.) 7 || In light of the Court’s disposition of this action as noncognizable, all of these 8 || requests to lodge or enter documents supporting Petitioner’s request for 9 || resentencing are denied as moot. 10 Petitioner also filed a “Motion For Modification Or [sic] Relief.” (ECF No. 11 || 55.) Although the title suggests Petitioner seeks a modified form of relief, in the 12 || body of the motion, Petitioner seeks relief from a judgment pursuant to Federal 13 || Rule of Civil Procedure 60(b). (See

.) A motion for relief from a final 14 || judgment “must be made within a reasonable time . . . after the entry of the 15 || judgment or order.” Fed. R. Civ. P. 60(c)(1) (emphasis added). At the date of 16 || Petitioner’s motion filing, no judgment had been entered in this Court. Although 17 || judgment will be entered forthwith, this prejudgment motion for relief from 18 || judgment is denied without prejudice because it is premature. 19 Petitioner also cites, without explanation, the sections of the Rules Governing 20 || Section 2254 Cases in the United States District Courts (“Habeas Rules’’) 21 || governing discovery, expansion of the record, and evidentiary hearings. (See ECF 22 || No. 55, at 2 (citing Habeas Rules 6 through 8).) To the extent Petitioner seeks 23 || discovery, expansion of the record, or an evidentiary hearing, his requests are 24 || denied because the First Amended Petition is summarily dismissed pursuant to 25 || Habeas Rule 4. See Habeas Rule 6(a) (requiring court authorization upon a 26 || showing of good cause for discovery); Habeas Rule 7(a) (providing rule for 27 || expansion of the record “[i]f the petition is not dismissed”); Habeas Rule 8(a) 28 || (providing rule for evidentiary hearing “[i]f the petition 1s not dismissed”).

1 | /// 2 Finally, Petitioner filed a “Motion To Recall The Remittitur, Request To 3 || Enter Motion.” (ECF No. 69.) Petitioner requests that this federal court return 4 || Petitioner’s case to the state court for resentencing, or recommend that the 5 || Secretary of the CDCR remove a five-year enhancement from his sentence. (/d., at 6 || 2.) As discussed supra, the Court declines to entertain these requests for relief, 7 || which first were presented in this case after the Magistrate Judge issued a Report 8 || and Recommendation on the merits of the First Amended Petition. See Howell, 231 9 || F.3d at 622; Blunk, 728 F. App’x at 737. In any event, for the reasons described in 10 || the R&R and in this Order, this Court lacks authority to grant the relief Petitioner 11 || seeks. See

; Demos, 925 F.2d at 1161. The motion is denied. 12 IT THEREFORE IS ORDERED that (1) the Report and Recommendation of 13 || the Magistrate Judge is accepted and adopted; (2) Petitioner’s motions (ECF Nos. 14 || 48, 54-55, 59, 61-64, 69, 70-72) are denied; and (3) Judgment shall be entered 15 || denying the First Amended Petition and dismissing this action with prejudice. 16 17 || DATED: _ September 1, 2020 18 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28