DLD-289 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 17-2147

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IN RE: KIRK A. SIMMONS,

Petitioner

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On a Petition for Writ of Mandamus from the

United States District Court for the District of Delaware

(Related to D. Del. No. 1-13-cr-00097-001)

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

June 22, 2017

Before: CHAGARES, VANASKIE and KRAUSE, Circuit Judges

(Opinion filed: July 6, 2017)

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OPINION*

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PER CURIAM

Kirk A. Simmons, a federal prisoner proceeding pro se, petitions for a writ of 

mandamus to compel the United States District Court for the District of Delaware to rule 

on his memorandum of law in support of his motion to vacate his sentence under 28 

U.S.C. § 2255, and his motion requesting in-camera review of the grand jury 

proceedings. We will deny the petition.

 

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

constitute binding precedent.
2

In 2014, Simmons pleaded guilty in the District of Delaware to one count of 

attempted enticement and coercion of a minor, a violation of 18 U.S.C. § 2242(b). He 

was sentenced to a mandatory minimum term of 120 months’ incarceration followed by 

ten years of supervised release. He did not file a direct appeal. In June 2015, he filed a 

motion to vacate his sentence under 28 U.S.C. § 2255. In September 2016, Simmons 

filed a memorandum of law in support of his § 2255 motion. 

In October 2016, Simmons filed a mandamus petition seeking an order directing 

the District Court to rule on then-pending motions to compel and supplement, as well as 

his § 2255 motion. After the District Court ruled on the motions to compel and 

supplement, Simmons amended his mandamus petition to seek only an order directing a 

ruling on his § 2255 motion. On January 18, 2017, Simmons filed a motion requesting 

in-camera review of the grand jury proceedings. On January 25, 2017, this Court denied 

Simmons’ mandamus petition, without prejudice to a renewed petition if the District 

Court did not rule on the § 2255 motion. By court order entered on February 3, 2017, the 

District Court denied Simmons’ § 2255 motion, and denied his motion requesting incamera review as moot. Simmons appealed, and this Court, by order entered on April 28, 

2017, denied Simmons’ request for a certificate of appealability.

In the instant mandamus petition, Simmons alleges that the District Court 

“ignored” both his memorandum of law in support of his § 2255 motion and his motion 

for in-camera review of the grand jury proceedings, and requests that the District Court 

be directed to rule on these filings. 
3

Mandamus is a drastic remedy that is granted in only extraordinary cases. See In 

re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). To demonstrate that 

mandamus is appropriate, a petitioner must establish that he has “no other adequate 

means” to obtain the relief requested, and that he has a “clear and indisputable” right to 

issuance of the writ. Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996). Mandamus may 

not be used as a substitute for appeal. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 

at 378–79. Among other things, Simmons has no right to the relief he requests, as his § 

2255 motion has been fully addressed on appeal and resolved adversely to Simmons. 

Indeed, he raised the issue of his memorandum of law in his request for a certificate of 

appealability. Accordingly, we will deny Simmons’ petition.