2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-1-2015

In Re: Kevin Flood

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Recommended Citation

"In Re: Kevin Flood" (2015). 2015 Decisions. Paper 442.

http://digitalcommons.law.villanova.edu/thirdcircuit_2015/442
BLD-177 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-1311

___________

IN RE: KEVIN PATRICK FLOOD,

Petitioner

____________________________________

On a Petition for Writ of Mandamus from the

United States District Court for the Western District of Pennsylvania

(Related to W.D. Pa. No. 3-04-cr-00036-001)

____________________________________

Submitted Pursuant to Rule 21, Fed. R. App. P.

April 23, 2015

Before: AMBRO, JORDAN and KRAUSE, Circuit Judges

(Filed: May 1, 2015)

_________

OPINION*

_________

PER CURIAM

Kevin Flood petitions pro se for a writ of mandamus to compel the Attorney 

General of the United States and the Director of the United States Department of Justice’s 

Office of Professional Responsibility to investigate and criminally charge various 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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individuals allegedly involved in tampering with audio surveillance tapes used in his 

underlying criminal case. We will deny the petition.

The foregoing action is Flood’s third mandamus petition in this Court related to 

the allegedly altered tapes. In 2007, we denied Flood’s request to order officials to 

investigate this matter. In re Flood, 254 F. App’x 139, 140 (3d Cir. 2007). In 2012, we 

denied Flood’s request to order the defendants in his related civil rights action to provide 

original copies of the tapes. In re Flood, 500 F. App’x 105, 109 (3d Cir. 2012). Outside 

of the mandamus context, we ruled in Flood’s direct criminal appeal that the District 

Court properly denied Flood’s motion to test the tapes because it was untimely and 

meritless. United States v. Flood, 339 F. App’x 210, 214 (3d Cir. 2009). In 2010, we 

ruled that the District Court properly determined that Flood’s civil claims against certain 

defendants for allegedly tampering with the audiotapes were barred by Heck v. 

Humphrey, 512 U.S. 477, 487 (1994). See Flood v. Schaefer, 367 F. App’x 315, 317-18 

(3d Cir. 2010). Flood has also attempted to litigate this issue via a motion pursuant to 28 

U.S.C. § 2255, but such relief was denied by the District Court, and this Court declined to 

issue a certificate of appealability. See United States v. Flood, Nos. 3:04-cr-36-KRGKAP, 3:11-cv-50-KRG-KAP, 2014 WL 2114849, at *1 (W.D. Pa. May 20, 2014); C.A. 

No. 14-2902. Flood’s related civil rights action is still pending in the District Court, and 

he has filed numerous repetitive requests related to the tapes in that action.

Mandamus is a drastic remedy available only in the most extraordinary of 

circumstances. In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). It 
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is appropriate only when (1) the petitioner has no other adequate means to obtain the 

relief sought; (2) the right to the issuance of the writ is clear and indisputable; and (3) the 

issuing court is satisfied in the exercise of its discretion that mandamus is appropriate 

under the circumstances. Id. at 378-79. As should be clear from our prior rulings, Flood 

does not meet this stringent standard. We will not order top executive branch officials to 

investigate unsubstantiated self-serving allegations of a conspiracy, especially when we 

have already held that these allegations lack merit. Accordingly, we will deny Flood’s 

petition for a writ of mandamus.