HLD-041 (November 2010) NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-4237
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IN RE: DAVID BERNARD,
Petitioner
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On a Petition for Writ of Mandamus from the
United States District Court for the
Eastern District of Pennsylvania
(Related to E.D. Pa. Crim. No. 04-cr-00580)
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Submitted Pursuant to Rule 21, Fed. R. App. P.
November 30, 2010
Before: McKEE, Chief Judge, ALDISERT and WEIS, Circuit Judges
(Opinion filed: March 11, 2011)
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OPINION
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PER CURIAM.
David Bernard has filed a petition for a writ of mandamus in which he
claims that his sentence imposed by the United States District Court for the Eastern
District of Pennsylvania is “illegal” because he was sentenced by a “non-Article III
judge.”
Bernard pled guilty to a four-count indictment charging him with, inter alia,
conspiracy to commit bank fraud. The Honorable Petrese B. Tucker, a District Judge in
the Eastern District, sentenced Bernard in November 2005 to a term of sixty-three months
in prison, three years of supervised release, and restitution of $601,231.84. This Court
affirmed. United States v. Bernard, 214 Fed. App’x 182 (3d Cir. 2007). The District
Court thereafter denied Bernard’s motion under 28 U.S.C. § 2255, rejecting a claim that
the court lacked subject-matter jurisdiction over the criminal case. This Court denied
Bernard’s request for a certificate of appealability in January 2008.
Bernard now seeks a writ of mandamus on the ground that he is entitled to
be re-sentenced by “an Article III judge,” a contention premised upon the wholly
unsupported assertion that Judge Tucker “took a Form 61 Commissioners Oath of
Office,” thereby rendering her “an employee of the Department of Justice.” Mandamus
Petition at 5.
We may issue writs of mandamus “in aid of” our jurisdiction. 28 U.S.C. §
1651(a); see United States v. Christian, 660 F.2d 892, 894 (3d Cir. 1981) (explaining that
“we must identify a jurisdiction that the issuance of the writ might assist”). Because
Bernard’s criminal proceedings are final and completed, his mandamus request fails at
the threshold because it is not sought in aid of our appellate jurisdiction. In any event,
the premise of Bernard’s claim (i.e., that Judge Tucker somehow lacked authority to
impose sentence) is patently frivolous on its face, leaving Bernard with no claim to the
drastic and extraordinary remedy of mandamus. See Cheney v. United States Dist. Court,
542 U.S. 367, 380 (2004). Accordingly, we will deny the mandamus petition.
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