Upshaw v. Cardona

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

TERRY UPSHAW, )

)

Petitioner, )

)

v. ) No. 4:20-cv-00460-JMB

)

TROY A. CARDONA, )

)

)

Respondent. )

MEMORANDUM AND ORDER

This matter comes before the Court on a petition for writ of mandamus filed by petitioner

Terry Upshaw. (Docket No. 1). For the reasons discussed below, the petition must be denied, and

this action dismissed, for lack of jurisdiction.

Standard of Review

Subject matter jurisdiction refers to a court’s power to decide a certain class of cases.

LeMay v. U.S. Postal Serv., 450 F.3d 797, 799 (8th Cir. 2006). “Federal courts are not courts of

general jurisdiction; they have only the power that is authorized by Article III of the Constitution

and the statutes enacted by Congress pursuant thereto.” Bender v. Williamsport Area Sch. Dist.,

475 U.S. 534, 541 (1986). See also Gunn v. Minton, 568 U.S. 251, 256 (2013) (“Federal courts

are courts of limited jurisdiction, possessing only that power authorized by Constitution and

statute”). The presence of subject matter jurisdiction is a threshold requirement that must be

assured in every federal case. Kronholm v. Fed. Deposit Ins. Corp., 915 F.2d 1171, 1174 (8th Cir.

1990). See also Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir. 1987) (“The threshold

requirement in every federal case is jurisdiction and we have admonished the district court to be

attentive to a satisfaction of jurisdictional requirements in all cases”). As such, the issue of

subject matter jurisdiction may be raised at any time, by any party or the court. Gray v. City of

Valley Park, Mo., 567 F.3d 976, 982 (8th Cir. 2009).

The Petition

Petitioner is a state prisoner who is currently incarcerated at the Ozark Correctional

Center in Fordland, Missouri. He has filed a pro se petition for writ of mandamus against Judge

Troy A. Cardona of the Circuit Court of Jefferson County. (Docket No. 1 at 1). The petition

concerns Judge Cardona’s decision to sentence petitioner to a term of incarceration, rather than

place him on probation.

On March 17, 2018, petitioner states that he was issued a conduct violation. (Docket No.

1 at 2). Subsequently, on May 16, 2018, he signed a plea agreement. Then, on September 11,

2018, petitioner received a second conduct violation. Petitioner asserts that both conduct

violations were minor and self-corrected. He claims that “two minor conduct violations [are]

insufficient by itself to support the denial of probation under Mo. Rev. Stat. [§] 217.362.”1

(Docket No. 1 at 1-2). Furthermore, petitioner notes that he “successfully complied with all

requirements of the long-term treatment program.” (Docket No. 1 at 2).

Petitioner also alleges that Judge Cardona inappropriately counted both conduct

violations when he sentenced petitioner. Instead, petitioner asserts that Judge Cardona should

have counted only one of the violations. Had Judge Cardona done so, petitioner contends that he

would have received probation, because “one minor conduct violation is insufficient by itself to

support the denial of probation under Mo. Rev. Stat. § 217.362.”

1 Pursuant to this statutory provision, the Missouri Department of Corrections is required to “design and implement

an intensive long-term program for the treatment of chronic nonviolent offenders with serious substance abuse

addictions.” Mo. Rev. Stat. § 217.362.1. If placed into treatment, the execution of an offender’s term of

incarceration is suspended pending completion of the program. Mo. Rev. Stat. § 217.362.2. If an offender

successfully completes the program, the board of probation and parole must advise the sentencing court of the

offender’s probationary release date; however, “[i]f the court determines that probation is not appropriate the court

may order the execution of the offender’s sentence.” Mo. Rev. Stat. § 217.362.3.

Petitioner asserts that the “procedural means for challenging the denial of probation is

through a writ of mandamus.” (Docket No. 1 at 3). As such, petitioner asks the Court to grant his

request and issue the writ.

Discussion

Petitioner has filed a petition for writ of mandamus seeking to compel Missouri Circuit

Court Judge Cardona to place him on probation. The Court lacks jurisdiction to grant such a

request. Therefore, for the reasons discussed below, the petition will be denied, and this action

dismissed without prejudice.

A. Writ of Mandamus

The issuance of a writ of mandamus is an “extraordinary remedy,” and “has traditionally

been used in the federal courts only to confine an inferior court to a lawful exercise of its

prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Will

v. United States, 389 U.S. 90, 95 (1967). “Only exceptional circumstances, amounting to a

judicial usurpation of power, will justify the invocation of this extraordinary remedy.” Allied

Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980).

B. 28 U.S.C. § 1651

Pursuant to the All Writs Act, federal district courts “may issue all writs necessary or

appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of

law.” See 28 U.S.C. § 1651(a); and Organization for Competitive Markets v. U.S. Dep’t of

Agriculture, 912 F.3d 455, 462 (8th Cir. 2018). However, the actions of a “state court are

completely outside the field in which” a district court can make judicial review and correction

pursuant to 28 U.S.C. § 1651(a). See Middlebrooks v. Thirteenth Judicial Dist. Cir. Court, Union

Cty., 323 F.2d 485, 486 (8th Cir. 1963). That is, with regard to state charges or proceedings, a

federal district court does not have either existing or potential jurisdiction. Id. See also Veneri v.

Circuit Court of Gasconade Cty., 528 F. Supp. 496, 498 (E.D. Mo. 1981) (stating that “it is well

settled that federal courts have no superintending control over and are without authority to issue

writs of mandamus to direct state courts or their judicial officers in the performance of their

duties”).

Here, petitioner seeks to compel Judge Cardona to place him on probation, asserting that

Judge Cardona exceeded his jurisdiction by sentencing him to a term of incarceration. As noted

above, the Court does not have either existing or potential jurisdiction over state proceedings,

and cannot direct a state judicial officer in the performance of his duties. Such jurisdiction is

necessary to issue a writ under the All Writs Act. Therefore, the Court cannot issue a writ of

mandamus pursuant to 28 U.S.C. § 1651(a).

C. 28 U.S.C. § 1361

Pursuant to 28 U.S.C. § 1361, a federal district court has original jurisdiction over “any

action in the nature of mandamus to compel an officer or employee of the United States or any

agency thereof to perform a duty owed to the plaintiff.” “Mandamus may issue under § 1361

against an officer of the United States only in extraordinary situations and when the plaintiff can

establish (1) a clear and indisputable right to the relief sought, (2) the state officer has a

nondiscretionary duty to honor that right, and (3) there is no other adequate remedy.” Mitchael v.

Colvin, 809 F.3d 1050, 1054 (8th Cir. 2016). Furthermore, “the duty owed to the plaintiff must be

ministerial and a positive command so plainly prescribed as to be free from doubt.” Keeny v.

Sec’y of the Army, 437 F.2d 1151, 1152 (8th Cir. 1971).

Here, petitioner is not seeking a writ of mandamus “to compel an officer or employee of

the United States or any agency thereof.” Rather, he is seeking to compel a circuit judge of the

State of Missouri to perform a duty allegedly owed to him. By its terms, 28 U.S.C. § 1361 does

not apply to state actors, but only to officers and employees of the United States. As such, this

statutory provision does not give this Court jurisdiction to issue the writ of mandamus that

petitioner seeks.

D. Proper Procedural Means for Challenging Denial of Probation

Petitioner argues that a petition for writ of mandamus is the proper procedural means for

challenging the denial of probation. This may be true if petitioner was challenging the denial of

probation in state court. See Wayne v. Missouri Bd. of Probation & Parole, 83 F.3d 994, 997 (8th

Cir. 1996) (noting that there are “Missouri cases where relief from parole denial has been either

sought or granted by means of a writ of mandamus to the Parole Board pursuant to Missouri

Supreme Court Rule 94”). However, as discussed above, this Court does not have the jurisdiction

to issue a writ of mandamus to compel a state court judge to do something. In other words, a

petition for writ of mandamus is not the appropriate means by which petitioner can attack the

denial of state probation in federal court. See Middlebrooks, 323 F.2d at 486 (denying

petitioner’s application for writ of mandamus, and suggesting that “if an unconstitutional

restraint were to be imposed upon petitioner in the state proceedings, or as a result thereof, the

question of the validity of such restraint could come within…[the court’s] jurisdiction through

habeas corpus attack”).

E. Summary Dismissal

The issue of subject matter jurisdiction may be raised at any time, by any party or the

court. Gray, 567 F.3d at 982. If a court determines that it lacks subject matter jurisdiction, the

action must be dismissed. Fed R. Civ. P. 12(h)(3). As explained above, the Court does not have

jurisdiction to issue a writ of mandamus against a state court judge. Therefore, the petition must

be denied, and this action dismissed without prejudice.

Accordingly,

IT IS HEREBY ORDERED that the petition for writ of mandamus (Docket No. 1) is

DENIED, and that this action DISMISSED without prejudice.

IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in

good faith.

Dated this 2nd day of April, 2020.

/s/ Jean C. Hamilton

JEAN C. HAMILTON

UNITED STATES DISTRICT JUDGE