2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-9-2014

USA v. Nezzy Adderly

Precedential or Non-Precedential: Non-Precedential

Docket 14-1416

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2014

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2014 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Nezzy Adderly" (2014). 2014 Decisions. Paper 263.

http://digitalcommons.law.villanova.edu/thirdcircuit_2014/263
ALD-157 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 14-1416

____________

IN RE: NEZZY ADDERLY,

Petitioner

__________________________________

On a Petition for Writ of Mandamus from

the United States District Court for the

Eastern District of Pennsylvania

(Related to D.C. Crim. No. 2-06-cr-00548-001)

__________________________________

Submitted Pursuant to Fed. R. App. Pro. 21

February 27, 2014

Before: RENDELL, FISHER and GREENAWAY, JR., Circuit Judges

(Filed: March 10, 2014)

____________

OPINION

____________

PER CURIAM

Petitioner Nezzy Adderly was convicted in the United States District Court for the 

Eastern District of Pennsylvania of the crime of being a convicted felon in possession of 

a firearm, in violation of 18 U.S.C. § 922(g), and the crime of being an armed career 

criminal, in violation of 18 U.S.C. § 924(e) (the “ACCA”). He was sentenced to the 

mandatory minimum term of imprisonment of 15 years. We affirmed in United States v. 
2

Adderly, 306 F. App’x 766 (3d Cir. 2009). On July 21, 2009, Adderly filed a motion to 

vacate sentence, 28 U.S.C. § 2255, which the District Court denied. See United States v. 

Adderly, 2010 WL 1047689 (E.D. Pa. March 19, 2010). The District Court set forth a 

chart of Adderly’s criminal convictions, and concluded that he had more than the 

requisite number of predicate violent felonies. Adderly, 2010 WL 1047689, at *3. 

Adderly appealed, and we denied his request for a certificate of appealability, see C.A. 

No. 10-1902.

On June 20, 2012, Adderly filed a motion under Rule 60(b) in his section 2255 

proceedings, arguing that the judgment should be reopened because he is not an armed 

career criminal under these Supreme Court decisions: Johnson v. United States, 559 U.S.

133 (2010); Chambers v. United States, 555 U.S. 122 (2009); and Begay v. United States, 

553 U.S. 137 (2008). In an order entered on August 2, 2012, the District Court denied 

the Rule 60(b) motion. Adderly appealed, and we denied his request for a certificate of 

appealability on the ground that the Rule 60(b) motion was in reality an unauthorized 

second or successive section 2255 motion, see C.A. No. 12-3280. On December 12, 

2012, Adderly filed another Rule 60(b) motion, in which he again argued that he did not 

have the required number of violent felonies to be classified as an armed career criminal. 

The District Court denied the motion as untimely and duplicative of the earlier Rule 60(b) 

motion. Adderly appealed, and we denied his request for a certificate of appealability, 

concluding that reasonable jurists would not find it debatable, Slack v. McDaniel, 529 

U.S. 473, 484 (2000), that Adderly’s latest Rule 60(b) motion was in reality an 
3

unauthorized second or successive motion to vacate sentence, and that the District Court 

lacked jurisdiction to consider it. See C.A. No. 12-4571. 

Meanwhile, on January 4, 2013, Adderly filed an item in the district court titled 

“Petition in Support of Raising a Federal Question Pursuant to Title 28 U.S.C. § 1331.” 

In this petition, Adderly argued that the District Court, in making its prior ACCA violent 

felonies determination, had failed to apply the categorical or modified categorical 

approach as required by Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. 

United States, 544 U.S. 13 (2005). Had the court done so, Adderly argued, it would have 

discovered that his three state robbery convictions pursuant to 18 Pa. Cons. Stat. Ann. § 

3701 were not violent felonies under the ACCA, 18 U.S.C. § 924(e)(2)(B). When the 

District Court did not timely rule on this “Petition,” Adderly filed a petition for writ of 

mandamus in this Court. We denied mandamus relief, concluding that the January, 2013 

“Petition” presented the same issue Adderly had tried unsuccessfully to pursue in his 

prior Rule 60(b) motions, and like his Rule 60(b) motions, it sought to advance one or 

more substantive claims attacking his armed career criminal sentence. It thus qualified as 

second or successive section 2255 motion which could not proceed in the district court 

without prior authorization from a court of appeals. See In re: Adderly, 522 F. App’x 

151, 153 (3d Cir. 2013). 

In June, 2013, Adderly sought leave in this Court to file a second or successive 

section 2255 motion, contending that he had newly discovered evidence -- the record of 

his three 1985 robbery convictions and 1988 conspiracy to commit robbery conviction –
4

to prove that he is not an armed career criminal under the “modified categorical 

approach” of Shepard, 544 U.S. 13. We denied him leave to file a second or successive 

section 2255 motion, concluding that he could not meet the gatekeeping requirements of 

section 2255(h), and that the federal question jurisdictional statute, 28 U.S.C. § 1331, did 

not supply an independent basis for jurisdiction over his collateral attack on his armed 

career criminal sentence, see C.A. No. 13-2474. 

In September, 2013, Adderly filed another Rule 60(b) motion, seeking to reopen 

his section 2255 proceedings. The District Court denied the motion, and we again denied 

Adderly a certificate of appealability on the ground that the District Court lacked 

jurisdiction to consider it, see Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005). In our 

order denying a certificate of appealability, we advised Adderly that the continued filing 

of frivolous pleadings could lead to financial sanctions and restrictions, see C.A. No. 13-

3990.

At issue now, Adderly again seeks mandamus relief because the District Court still 

has not ruled on his January 4, 2013 “Petition in Support of Raising a Federal Question 

Pursuant to Title 28 U.S.C. § 1331.” 

We will deny the petition for writ of mandamus. Our jurisdiction derives from 28 

U.S.C. § 1651, which grants us the power to “issue all writs necessary or appropriate in 

aid of (our) . . . jurisdiction and agreeable to the usages and principles of law.” A writ of 

mandamus is an extreme remedy that is invoked only in extraordinary situations. See

Kerr v. United States Dist. Court, 426 U.S. 394, 402 (1976). To justify the use of this 
5

extraordinary remedy, a petitioner must show both a clear and indisputable right to the 

writ and that he has no other adequate means to obtain the relief desired. See Haines v. 

Liggett Group Inc., 975 F.2d 81, 89 (3d Cir. 1992). The “Petition in Support of Raising a 

Federal Question” seeks to advance one or more substantive claims attacking Adderly’s 

armed career criminal sentence. As we previously explained, it thus qualifies as second 

or successive section 2255 motion which cannot proceed in the district court without 

prior authorization from a court of appeals (which we have previously denied). Although 

a writ of mandamus may be warranted where undue delay is tantamount to a failure to 

exercise jurisdiction, Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996), and a 14-month 

delay usually presents a due process issue, see Johnson v. Rogers, 917 F.2d 1283, 1285 

(10th Cir. 1990) (court’s congested docket did not justify 14-month delay in adjudicating 

habeas corpus petition); Jones v. Shell, 572 F.2d 1278, 1280 (8th Cir. 1978) (district 

court’s 14-month delay in adjudicating petition following remand from appeals court 

denied petitioner due process), where jurisdiction is lacking in the first instance, as it is 

here, it cannot be said that a litigant’s right to an expeditious ruling is “clear and 

indisputable.”1

For the foregoing reasons, we will deny the petition for writ of mandamus.

 

1 Adderly is free to write to the District Court and request a ruling on his January, 2013 

petition.