Kivett v. Gathright

360 F. Supp. 102, 1973 U.S. Dist. LEXIS 13539

• Court: District Court, W.D. Virginia
• Decided: May 22, 1973
• Docket: Civ. A. No. 73-C-42-R
• Status: Published

Opinion

OPINION and JUDGMENT

DALTON, District Judge.

Petitioner has filed a “Petition for a Peremptory Writ of Mandamus” with this court, pursuant to 28 U.S.C. § 1651 (a). Petitioner seeks an order returning him to Roanoke City Jail, as he alleges that he was sentenced to eighteen months in jail and is presently incarcerated at the Bland Correctional Farm. The court notes that petitioner is properly serving his sentence in the state penitentiary as required by law and that jails are used primarily to hold prisoners before and during trials and prior to sentencing.

The court further notes that United States Courts do not have original jurisdiction to issue writs of mandamus or to grant any relief in the nature of mandamus except as an ancillary remedy to be used in the exercise of jurisdiction already acquired. Craig v. State of California, 376 F.2d 583, 584 (7th Cir. 1967). It has been held that a petition by a federal prisoner for a writ of mandamus was properly denied by a district court since the latter had no jurisdiction to issue such a writ. Craig v. State of California, supra at 584. This court also has no jurisdiction to issue such a writ to a state prisoner.

Accordingly, it is ordered that the petition for a writ of mandamus be dismissed and the relief denied. This dismissal is without prejudice to the refiling of a petition on any claim not adjudicated here after exhaustion of available state remedies.