(HC) Biagas v. State of California

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA VINCENT JAMES BIAGAS, SR., No. 2:21-cv-0109 CKD P 12 Petitioner, 13 v. ORDER AND STATE OF CALIFORNIA, et al., FINDINGS AND RECOMMENDATIONS 15 Respondents.

17 Petitioner, a California prisoner, has filed a document titled “Petition for Writ of Mandate.” He attacks his criminal conviction and sentence. When a state prisoner challenges the legality of his custody and the relief he seeks is the determination of his entitlement to an earlier or immediate release, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Furthermore, it appears petitioner seeks relief under “Article 440” a provision of New York law (ECF No. 1 at 4) which is not applicable in any respect in a federal or California court. To the extent petitioner seeks relief pursuant to procedures available in California courts, those procedures are likewise not applicable in federal court.

25 In light of the foregoing, the court will recommend that petitioner’s “Petition for a Writ of Mandate” be dismissed.

27 ///// ///// 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Petitioner’s request to proceed in forma pauperis (ECF No. 8) is granted; and 3 2. The Clerk of the Court assign a district court judge to this case.

4 IT IS HEREBY RECOMMENDED that: 5 1. Petitioner’s “Petition for a Writ of Mandate” be dismissed; and 6 2. This case be closed.

7 These findings and recommendations are submitted to the United States District Judge | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days | after being served with these findings and recommendations, petitioner may file written | objections with the court. Such a document should be captioned “Objections to Magistrate || Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections | within the specified time may waive the right to appeal the District Court’s order. Martinez v. | Yist, 951 F.2d 1153 (9th Cir. 1991).

14 | Dated: February 9, 2021 CA rd kt / (g—, 15 CAROLYN K DELANEY 16 UNITED STATES MAGISTRATE JUDGE | , biag0109.frs