ALD-128 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-1112
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IN RE: MICHAEL WEST,
Petitioner
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On a Petition for Writ of Mandamus from the
United States District Court for the District of New Jersey
(Related to D.N.J. Civ. No. 2:13-cv-05339)
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Submitted Pursuant to Rule 21, Fed. R. App. P.
February 9, 2017
Before: MCKEE, JORDAN and RESTREPO, Circuit Judges
(Opinion filed: February 28, 2017)
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OPINION *
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PER CURIAM
Federal prisoner Michael West, proceeding pro se, seeks a writ of mandamus in
connection with his 28 U.S.C. § 2255 proceedings in the United States District Court for
the District of New Jersey. For the reasons that follow, we will deny West’s mandamus
petition.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
I.
In 2013, West filed a pro se § 2255 motion in the District Court, attacking his
conviction and sentence for child pornography offenses. 1 That matter was assigned to the
Honorable Claire C. Cecchi. On or about January 9, 2017 (at which point West’s § 2255
case was still pending before the District Court), West filed this mandamus petition.
Therein, he appeared to touch upon an argument undergirding one of his § 2255 claims,
and he complained about the Government’s conduct in his § 2255 proceedings (asserting
that the Government had caused “undue delay”). West asked that we direct Judge Cecchi
to recuse herself (pursuant to 28 U.S.C. §§ 455(a) or (b)(1)) or vacate his illegal sentence
“without undue delay.” He also appeared to ask that we direct Judge Cecchi to hold an
evidentiary hearing on his § 2255 claims. On January 17, 2017, Judge Cecchi denied
West’s § 2255 motion without an evidentiary hearing and closed the case. 2 On February
16, 2017, the District Court docketed a notice of appeal from West challenging that order.
That appeal is pending before our Court. See C.A. No. 17-1376.
II.
A writ of mandamus is a drastic remedy that is available in extraordinary
circumstances only. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.
constitute binding precedent.
1
West subsequently made multiple amendments to his § 2255 motion.
2
Although the January 17, 2017 order stated that West’s § 2255 motion was denied
“without prejudice,” it appears from the analysis in the accompanying opinion that a
denial with prejudice might have been intended there. But regardless of whether that
denial was with or without prejudice, we conclude that mandamus relief is not warranted
2
2005). To obtain the writ, a petitioner must show that “(1) no other adequate means
[exist] to attain the relief he desires, (2) the party’s right to issuance of the writ is clear
and indisputable, and (3) the writ is appropriate under the circumstances.” Hollingsworth
v. Perry, 558 U.S. 183, 190 (2010) (per curiam) (alteration in original) (internal quotation
marks omitted).
West has not made that showing here. To the extent that his references to “undue
delay” could liberally be construed as seeking an order compelling Judge Cecchi to rule
on his § 2255 motion, such a request is now moot in light of her January 17, 2017 order.
See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996). To the
extent that his petition seeks an evidentiary hearing and the vacatur of his sentence,
asserts any of his § 2255 claims, and complains about the Government’s conduct during
the § 2255 proceedings, a mandamus petition is not the proper vehicle for pursuing these
issues. See Madden v. Myers, 102 F.3d 74, 77 (3d Cir. 1996) (explaining that mandamus
is not a substitute for an appeal, and that “a writ of mandamus may not issue if a
petitioner can obtain relief by appeal”). Lastly, to the extent that he seeks Judge Cecchi’s
recusal, that request (if not mooted by her closure of his case) does not justify mandamus
relief because he has not demonstrated that recusal is warranted. Indeed, West has not
established that Judge Cecchi’s “impartiality might reasonably be questioned,” 28 U.S.C.
§ 455(a); nor has he shown that she “has a personal bias or prejudice” against him, or that
here for the reasons given in Section II.
3
she has “personal knowledge of disputed evidentiary facts” at issue in his § 2255 case, 28
U.S.C. § 455(b)(1).
In light of the above, we will deny West’s mandamus petition.
4