2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-14-2012

In Re: Jerome Blyden

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-2760

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Recommended Citation

"In Re: Jerome Blyden " (2012). 2012 Decisions. Paper 440.

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GLD-272 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-2760

___________

IN RE: JEROME BLYDEN,

Petitioner

____________________________________

On a Petition for Writ of Mandamus from the

District Court of the Virgin Islands

(Related to 09-cr-00020)

____________________________________

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

August 30, 2012

Before: FUENTES, GREENAWAY, JR., and BARRY, Circuit Judges

(Opinion filed: September 14, 2012)

_________

OPINION

_________

PER CURIAM

Jerome Blyden has filed a petition for a writ of mandamus, seeking to have us 

order the District Court of the Virgin Islands to rule on a number of motions that he filed 

in that Court in connection with his criminal case. We will deny the petition.

A writ of mandamus is an extraordinary remedy. Kerr v. U.S. Dist Ct., 426 U.S. 

394, 402 (1976). Within the discretion of the issuing court, mandamus traditionally may 

be “used . . . only ‘to confine an inferior court to a lawful exercise of its prescribed 
2

jurisdiction or to compel it to exercise its authority when it is its duty to do so.’” Id.

(citations omitted). A petitioner must show “no other adequate means to attain the 

desired relief, and . . . a right to the writ [that] is clear and indisputable.’” In re 

Patenaude

We will divide the “unresolved” motions Blyden lists in his petition into three 

categories: (1) pretrial motions (other than those involving visitation or custody); 

(2) motions involving visitation or custody, and those seeking relief pending sentencing 

or appeal; and (3) motions filed after his direct appeal had concluded. We will first 

consider the pretrial motions. A number of the filings that Blyden characterizes as 

needing “resolution” actually required no action on the part of the District Court, as they 

were “notices,” rather than “motions,” and they sought no relief from the District Court. 

, 210 F.3d 135, 141 (3d Cir. 2000) (citation omitted). Blyden has not made this 

showing. 

See, e.g., District Court docket numbers (“dkt. #”) 74, 76, 144, 147. It appears that some 

of the motions that Blyden believes are unresolved were in fact resolved by the District 

Court.1

 1 For example, Blyden states that the “Application and Checklist for Speedy Trial filed on 

July 31, 2009” needs resolution, but an order concerning Blyden’s “Application and 

Checklist for Speedy Trial Extension” shows that Blyden’s motion, apparently seeking an 

extension of time to try the case, was granted. It appears that the motion docketed at 

#225, which Blyden characterizes as seeking release of Brady materials, was miscaptioned on the District Court docket. The motion, filed by Blyden’s attorney, seeks 

permission to withdraw as Blyden’s retained counsel, and to instead be appointed by the 

District Court as counsel for Blyden. The motion was granted. See dkt. #281.

 Mandamus is not appropriate as to the “Notices” and the resolved motions, as 

Blyden cannot show a right to relief where no relief is needed. As to the remaining 

pretrial motions mentioned by Blyden, the District Court may have ruled on a number of 
3

them orally. See, e.g., Dkt. #349 (minute entry). To the extent some pretrial motions

were not explicitly ruled on by the District Court, Blyden had the opportunity to explain 

on appeal how he was prejudiced by their nonresolution. Because Blyden had an 

adequate means to address any unresolved pretrial motions, mandamus cannot be granted

as to the pretrial motions.2

Blyden complains that a number of matters concerning his detention and rights to 

visitation are unresolved: (1) two appeals from a magistrate judge’s orders regarding 

pretrial detention and visitation, see dkt. ## 112, 113; (2) another motion for release from 

pretrial detention, see dkt. #313; (3) a motion for release pending sentencing, see dkt. 

#414; and (4) a motion for release on bail pending appeal, see dkt. #459. Because Blyden 

is now in detention as a result of his conviction (and unsuccessful appeal), these motions 

are all moot. Murphy v. Hunt, 455 U.S. 478, 484 (1982) (motion for pretrial bail was 

moot once movant was convicted); North Carolina v. Rice, 404 U.S. 244, 246 (1971) 

(federal courts cannot “decide questions that cannot affect the rights of litigants in the 

case before them”).3

The remaining three motions mentioned by Blyden were filed after his appeal had 

concluded: (1) “Defendant’s Motion to Vacate Judgment with Points and Authorities,”

 2 Blyden also complains that his post-trial “Motion to Correct Sentence,” dkt. #455, filed 

pro se in the District Court during the pendency of his appeal, remains undecided. Like 

the pretrial motions, the arguments in this motion could have raised in his direct appeal; 

thus, mandamus cannot be granted as to this motion.

3 His motion to “Stay Financial Conditions of Sentence” pending appeal, dkt. #450, is 

also moot, given that the appeal has been resolved.
4

dkt. #484; (2) “Re-newed Motion to Permit Inspection of Records of Grand Jury 

Proceedings and to Compel Production of Grand Jury Materials with Points and 

Authorities,” dkt. #485; and (3) “Motion to Withdraw Appointed Counsel of Record,” 

dkt. #486 (emphasis in original). The docket also contains a memorandum and an 

affidavit in support of the motion to withdraw counsel, and the Government’s reply to the 

latter two motions. These three motions have been pending on the District Court docket

about four to five months. An appellate court may issue a writ of mandamus on the 

ground that undue delay is tantamount to a failure to exercise jurisdiction. Madden v. 

Myers, 102 F.3d 74, 79 (3d Cir. 1996). Although the four-to-five month delay is of some 

concern, the delay “does not yet rise to the level of a denial of due process.” Id. 

(addressing delay of similar length). We are confident that the District Court will rule on 

the pending motions without undue delay after any appropriate notice is given and the 

time to respond has run.

4

 Thus, there is no need for this Court to compel the District 

Court to exercise its authority. Roche v. Evaporated Milk Ass’n

For the foregoing reasons, the petition for a writ of mandamus is denied.

, 319 U.S. 21, 26 (1943). 

5

 4

 We express no opinion as to the propriety or merit of the pending motions. It appears 

that Blyden may be attempting to file a motion to vacate his sentence pursuant to 28 

U.S.C. § 2255. If so, the District Court will send Blyden the appropriate notice pursuant 

to United States v. Miller, 197 F.3d 644, 652 (3d Cir. 1999).

5

 Blyden’s motion to proceed on the original record is denied as moot.