2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-6-2010

In re: Gary Rhines

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2990

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Recommended Citation

"In re: Gary Rhines " (2010). 2010 Decisions. Paper 479.

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HLD-173 (July 2010) NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-2990

___________

In re: GARY RHINES, Petitioner

____________________________________

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. 01-cr-00310)

____________________________________

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

July 30, 2010

Before: MCKEE, Chief Judge, SCIRICA and WEIS, Circuit Judges

Opinion filed October 6, 2010 

_________

OPINION

_________

PER CURIAM.

Petitioner Gary Rhines, a prisoner proceeding pro se, seeks a writ of 

mandamus compelling the District Court to dismiss his 2001 indictment as 

Ajurisdictionally defective.@ For the reasons that follow, we will deny the petition.

In 2002, Gary Rhines was convicted of possession with intent to distribute 

fifty grams of cocaine base. He was sentenced to life imprisonment. We affirmed the 

conviction and sentence, see United States v. Rhines, 143 F. App=x 478 (3d Cir. 2005), 
2

and the United States Supreme Court denied certiorari, see Rhines v. United States, 546 

U.S. 1210 (2006). In January 2007, Rhines filed a motion pursuant to 28 U.S.C. ' 2255. 

The District Court denied the motion, and this Court denied a certificate of appealability. 

(C.A. 07-2759, order entered on Oct. 15, 2007.) We also denied Rhines= application to 

file a second motion under 28 U.S.C. ' 2255 on July 7, 2010. (C.A. 10-2438.)

Rhines filed this mandamus petition on July 7, 2010. He argues that the 

government improperly amended his 2001 indictment to include his prior convictions to 

seek an enhanced sentence. He further claims that the information regarding his prior 

drug-related convictions prejudiced the grand jury against him.

Mandamus is a drastic remedy available only in extraordinary cases, see In 

re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005), as the petitioner must 

demonstrate that he has Ano other adequate means@ to obtain the relief desired and a Aclear 

and indisputable@ right to issuance of the writ. Madden v. Myers, 102 F.3d 74, 79 (3d 

Cir. 1996). A writ is not a substitute for an appeal. In re Kensington Int=l Ltd., 353 F.3d 

211, 219 (3d Cir. 2003). Rhines challenged his indictment and grand jury proceedings 

on direct appeal. We upheld the District Court=s finding that his prior conviction was a 

proper ground upon which the government could seek to enhance his sentence. See

Rhines, 143 F. App=x at 486. As such, he cannot demonstrate that he had no other means 

to obtain the desired relief, and he is not entitled to a writ of mandamus. Accordingly, 

the petition is denied. Rhines= motion for appointment of counsel is denied.