BLD-198 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 11-1748

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IN RE: ROBERT L. NELSON,

Petitioner

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On a Petition for Writ of Mandamus from the

United States District Court for the Middle District of Pennsylvania

(Related to M.D. Pa. Crim. No. 09-cr-00211-001)

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

May 26, 2911

Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

(Opinion filed : June 15, 2011)

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OPINION

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PER CURIAM

Robert Nelson filed a pro se petition for a writ of mandamus pursuant to 28 U.S.C. 

§ 1651, asking that we compel the District Judge currently presiding over his criminal 

case to recuse himself and require a new judge to give him an evidentiary hearing. 

Through that hearing, Nelson seeks to establish a defense of outrageous government 

misconduct based on his belief that the government induced him to commit a crime 

through an informant and worked in cahoots with his court-appointed attorneys, who 

allegedly altered evidence, requested continuances to benefit the government, and refused 
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to put forth his outrageous government misconduct defense. For the following reasons, 

we will deny Nelson’s petition.

I.

Nelson was charged in a superseding indictment with conspiracy to possess with 

intent to distribute and possession with intent to distribute cocaine and cocaine base, and 

with being a felon in possession of a firearm. The District Court appointed three different 

attorneys to represent Nelson, but Nelson “found fault with all three, alleging that they 

were assisting the government in concealing and altering evidence of purported 

outrageous government misconduct.” (Apr. 29, 2011 Mem., Doc. 242, at 1.) 

Accordingly, Nelson moved to proceed pro se, and the District Court permitted him to do 

so with the assistance of standby counsel. 

Approximately a week before trial, Nelson filed numerous pretrial motions, 

including: (1) a motion for expanded discovery, seeking information that Nelson believed 

was germane to his outrageous government misconduct defense; (2) a motion to produce 

an individual named Charles Dillard, who Nelson believed was serving as the

government’s informant and who would purportedly establish a link between his first 

court-appointed attorney, Thomas Thornton, and the government’s plan to set him up; 

and (3) a motion for grand jury minutes, which was also based on the alleged link 

between Dillard, Thornton, and the government. Nelson also filed two suppression 

motions and a motion to suppress or dismiss the indictment. Those motions were based 

on the government’s alleged misconduct and defense counsels’ alleged constitutional 
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deficiencies. The District Court denied Nelson’s motions as meritless, noting in one of 

its many pretrial orders that “the government, in documents submitted to this court under 

penalty of perjury, declared that Charles Dillard was not involved in this case” and that 

Nelson’s “argument that his first attorney . . . was working on behalf of the government 

to gather evidence against [him] is completely unsubstantiated, as are [Nelson’s] other 

allegations of a vast conspiracy to entrap him.” (Dec. 3, 2010 Order, Doc. 192 at 1-2 

n.1.)

Nelson also filed two identical motions requesting that Judge Conner recuse 

himself, arguing that the Judge had appointed constitutionally deficient counsel and had 

exhibited bias by questioning Nelson’s defense. Judge Conner denied both motions, 

concluding that they were wholly meritless.

On the first day of trial, Nelson informed the District Court that he sought to plead 

guilty and wanted standby counsel to be reinstated as counsel for purposes of the plea 

proceeding. Ten days later, Nelson filed a motion to withdraw his guilty plea, alleging 

that he pled based on counsel’s misleading advice and that he should be permitted to 

withdraw his plea in light of additional evidence supporting his defense. While his 

motion was pending, Nelson filed a request for an evidentiary hearing.

After a hearing,1the District Court denied Nelson’s motion to withdraw his guilty 

plea, finding, among other things, that Nelson lacked any evidence of government 

 

1 During the hearing, Nelson apparently requested that Judge Conner recuse 

himself for the third time, which the Judge declined to do.
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misconduct or entrapment. Accordingly, the District Court, construing Nelson’s request 

for an evidentiary hearing as a request for a hearing on his motion to withdraw his guilty 

plea, denied that request as moot.

Nelson filed a notice of appeal, seeking to challenge the District Court’s denial of 

his motion to withdraw his guilty plea.2 Around the same time, he filed this petition for a 

writ of mandamus, which he amended with our permission. 

II.

Mandamus is a “drastic and extraordinary remedy,” justifiable only in 

“exceptional circumstances amounting to a judicial usurpation of power, or a clear abuse 

of discretion.” Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380

(2004) (citation omitted). To obtain relief, a petitioner must establish that no other means 

of relief is adequate, a “clear and indisputable” right to the relief, and that issuance of the 

writ is appropriate under the circumstances. In re Pressman-Gutman Co., 459 F.3d 383,

399 (3d Cir. 2006). If a district court judge’s refusal to recuse does not constitute an 

abuse of discretion, it will not satisfy the standard for mandamus relief.3See Alexander 

v. Primerica Holdings, Inc., 10 F.3d 155, 163 & n.9 (3d Cir. 1993).

We see no error in Judge Conner’s refusal to recuse himself. That Judge Conner 

 

2

The appeal, docketed at No. 11-1746, has been stayed pending imposition of a 

Judgment and Commitment order by the District Court. A sentencing hearing has 

been scheduled in the District Court for July 22, 2011.

3 Nelson did not seek recusal under 28 U.S.C. § 144. Mandamus will not lie to 

review the denial of recusal under § 144. Green v. Murphy, 259 F.2d 591, 594 (3d 

Cir. 1958) (en banc).
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ruled against Nelson and expressed doubt as to his outrageous government misconduct 

defense is insufficient to establish personal bias or prejudice warranting recusal. See 28 

U.S.C. § 455; Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone 

almost never constitute a valid basis for a bias or partiality motion.”).). Furthermore, 

Nelson’s suggestions that Judge Conner is somehow involved in the alleged conspiracy 

against him because the Judge was responsible for appointing the attorneys who allegedly 

sabotaged him are wholly unsubstantiated.

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Nor has Nelson established that he is entitled to mandamus relief with respect to 

his request for an evidentiary hearing. To the extent Nelson seeks to challenge the 

District Court’s rejection, in connection with its denial of the motion to withdraw his 

guilty plea, of his outrageous government misconduct defense without providing him an 

evidentiary hearing, he is free to do so on appeal. See Madden v. Myers, 102 F.3d 74, 77 

(3d Cir. 1996) (“[A] writ of mandamus may not issue if a petitioner can obtain relief by 

appeal . . . .”). And to the extent Nelson alleges that counsel was ineffective, he may seek 

relief in the normal course of appellate and collateral proceedings. 

For the foregoing reasons, we will deny Nelson’s petition for a writ of mandamus.

 

4 Nelson’s request for a “certificate of necessity for [his] case to be heard by a [sic] 

impartial non-biased district court judge,” (Mem. of Law in Supp. of Pet. 4), is 

likewise denied.