2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-17-2010

In Re: Bernard Barnett

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-4354

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Recommended Citation

"In Re: Bernard Barnett " (2010). 2010 Decisions. Paper 58.

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CLD-056 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-4354

___________

IN RE: BERNARD BARNETT,

Petitioner

____________________________________

Petition for Writ of Mandamus from the

United States District Court for the 

Middle District of Pennsylvania

(Related to M.D. Pa. Civil No. 10-cv-01195)

____________________________________

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

December 2, 2010

Before: RENDELL, FUENTES and SMITH Circuit Judges

(Opinion filed December 17, 2010 )

_________

OPINION OF THE COURT

_________

PER CURIAM

Bernard Barnett filed this pro se petition for a writ of mandamus seeking an order 

compelling the District Court to grant his habeas corpus petition and release him from 

prison. For the reasons that follow, we will deny the petition.

Barnett was convicted of federal drug and firearms offenses in 1991 and was 

sentenced to life in prison. His conviction and sentence were affirmed by the U.S. Court 

of Appeals for the Second Circuit. Barnett then began a lengthy and mostly unsuccessful 
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series of collateral attacks on his conviction and sentence in various federal district and 

appellate courts. He claims to have filed twenty-three motions to vacate his sentence 

under 28 U.S.C. § 2255, eleven petitions for a writ of habeas corpus under 28 U.S.C. § 

2241, seven motions to reduce his sentence pursuant to 18 U.S.C. § 3582, and fourteen 

mandamus petitions.

Of particular relevance to the present matter is a petition for a writ of habeas 

corpus under 28 U.S.C. § 2241, which Barnett filed in District Court in June 2010. He 

raised various challenges to the legality of his sentence in that petition. The District 

Court dismissed it on the basis that a § 2255 motion is the presumptive means for a 

federal prisoner to attack his sentence, and Barnett had not shown that a § 2255 motion 

would have been inadequate or ineffective in his case. See In re Dorsainvil, 119 F.3d 

245, 248-52 (3d Cir. 1997). Barnett appealed from that order in early November 2010, 

and the appeal is pending. See C.A. No. 10-4316. About a week later, Barnett filed this 

mandamus petition. He argues that his sentence is illegal and that he has already served 

the lawful maximum term of imprisonment. He further argues that all of his collateral 

attacks, including the § 2241 petition before the District Court, were improperly denied 

and that the courts have “ignored” and “circumvented” his claims.

Mandamus is a drastic remedy available only in the most extraordinary of 

circumstances. 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 a “clear and indisputable” right to the issuance of the writ and that he has “no other 
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adequate means” to obtain the relief desired. Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 

1996).

Barnett has failed to show that he has no other adequate means to obtain the relief 

he seeks, i.e., the consideration of the claims raised in his habeas petition and the granting 

of habeas relief. In fact, Barnett has already availed himself of the proper means for 

seeking relief: his pending appeal from the District Court’s order dismissing his habeas 

petition. He may not use a mandamus petition as a substitute for the regular appeals 

process. See In re Briscoe, 448 F.3d 201, 212 (3d Cir. 2006). Although Barnett is 

frustrated by the failure of his many collateral challenges to his sentence, the denials of 

his previous motions and petitions do not demonstrate, as he contends, that he has no 

adequate means other than mandamus for obtaining relief. On the contrary, this history 

provides ample proof of the fact that there are other adequate vehicles for seeking the 

relief he desires regarding his sentence.

Accordingly, we will deny the petition.