2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-6-2012

In Re: Kevin Flood

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-3655

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Recommended Citation

"In Re: Kevin Flood " (2012). 2012 Decisions. Paper 191.

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CLD-016 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 12-3655

____________

IN RE: KEVIN PATRICK FLOOD,

Petitioner

__________________________________

Petition for Writ of Mandamus from

the United States District Court

for the Western District of Pennsylvania

(Related to D.C. Civil No. 11-cv-00050)

__________________________________

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

October 18, 2012

Before: RENDELL, JORDAN and GARTH, Circuit Judges

(Opinion filed: November 6, 2012)

____________

OPINION OF THE COURT

____________

PER CURIAM

Kevin Patrick Flood, a federal prisoner, has filed a petition for writ of mandamus, 

asking that his section 2255 proceedings, 28 U.S.C. § 2255, be reassigned to a different 

District Judge and referred to a different Magistrate Judge. For the reasons that follow, 

we will deny the petition.

Following the denial of pretrial motions to suppress and for testing of audiotapes 

and other evidence, Flood was convicted of conspiracy to possess and distribute 
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marijuana, possession with intent to distribute marijuana, and possession of a firearm by 

a convicted felon. On November 20, 2007, he was sentenced by United States District 

Judge Kim R. Gibson to a term of imprisonment of 180 months and 8 years of supervised 

release. We affirmed the conviction and sentence on appeal, see United States v. Flood, 

339 Fed. Appx. 210 (3d Cir. 2009), holding, in pertinent part, that probable cause 

supported the issuance of an anticipatory search warrant and that the District Court’s 

denial of Flood’s motion for the testing of audio recordings made by the confidential 

informant was not an abuse of discretion. With regard to the request to test the 

audiotapes, we agreed with the District Court that Flood had waived his right to request 

testing, see id. at 214, and we noted that, in any event, “the authenticity and accuracy of 

the evidence precluded the need to authorize funding for expert testing.” Id.

On February 24, 2011, Flood filed a section 2255 motion to vacate sentence, in 

which he contended that trial counsel rendered constitutionally ineffective assistance in 

failing to move to suppress the audiotapes based on a violation of the sealing 

requirements of 18 U.S.C. § 2518 and failing to timely request testing of the audiotapes; 

refusing to challenge “audio tape tampering” and violations of the sealing requirements; 

failing to quash the indictment; and refusing to call a witness to rebut the police version 

of his interrogation. United States Magistrate Judge Keith Pesto issued a Miller notice, 

see United States v. Miller, 197 F.3d 644 (3d Cir. 1999), and thereafter Flood elected to 

proceed on the merits of his section 2255 motion.

Missing a deadline previously established for its response, on July 25, 2011, the 

Government filed a motion for an extension of time in which to respond to Flood’s 
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section 2255 motion. On August 8, 2011, Flood filed a motion for a default judgment, 

and, on September 6, 2011, Flood filed opposition to an extension. He also filed five 

letters, a sealed document, a motion to clarify, a motion to bring the court up to date, and 

an item titled “Judicial Notice.” This last item was filed on June 1, 2012. 

On June 6, 2012, Magistrate Judge Pesto ruled on Flood’s motions, essentially 

denying them. On June 21, 2012, Flood filed an item titled “Objections to magistrate 

Judge Pesto’s orders; and Petitioner’s demand for the Production of the Original Audio 

Tapes and Ruling on Recusal Issues.” See Docket Entry No. 18. On July 6, 2012, Flood 

filed an item titled “Motion for forensic test Original Tapes and Evidentiary Hearing,”

and, on July 11, 2012, he filed an item titled “Ex Parte to Judge Gibson ... requesting a 

ruling on Doc. No. 18, objections to MJ-Pesto’s order, etc., to be expedited for good 

cause.” See Docket Entry No. 20. 

On July 31, 2012, the Government moved again for an extension of time in which 

to respond to Flood’s section 2255 motion; the request was based on the Government’s 

need to comb through Flood’s numerous additional submissions. Flood again opposed 

the extension, but, on September 6, 2012, Magistrate Judge Pesto granted the 

Government’s request and ordered that its response be filed on or before October 1, 2012. 

On September 17, 2012, Flood filed objections to the Magistrate Judge’s order granting 

the Government an extension of time to respond.

On September 25, 2012, Flood filed a petition for writ of mandamus in this Court,

asking us to reassign his section 2255 case to different District and Magistrate Judges. 

Flood asserted that District Judge Gibson and Magistrate Judge Pesto “have been using 
4

their position (criminal in nature) to cover up and conceal crimes involving government 

officers.” Petition, at 1. Both judges are biased and prejudiced against him, Flood

argues, because they have refused to enforce the Federal Rules of Civil Procedure. Judge 

Gibson, for example, “is still refusing to obey rule 72(a) and Flood has never given his 

written permission that magistrate Judge Pesto make any final orders and rulings.” Id. at 

2. In addition to disqualifying Judges Gibson and Pesto, Flood asks us to strike any 

response filed by the Government to his section 2255 motion until this mandamus request 

is resolved, and that we appoint a master under Fed. R. Civ. Pro. 53 to address his 

spoliation argument. Flood has filed separate motions in this Court to stay the 

proceedings in the District Court until we resolve his mandamus petition, and for 

appointment of a master. 

Meanwhile, the Government asked for an additional extension of time in which to 

file its section 2255 response, and Magistrate Judge Pesto granted that request on October 

3, 2012. The Government now has until October 31, 2012, or twenty (20) days after we 

rule on Flood’s mandamus petition, whichever is later, in which to file its section 2255 

response.

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 will only issue under extraordinary circumstances. See Sporck v. Peil, 759 

F.2d 312, 314 (3d Cir. 1985). To justify the use of this extraordinary remedy, a petitioner 

must show both a clear and indisputable right to the writ and that he has no other 
5

adequate means to obtain the relief desired. See Haines v. Liggett Group Inc., 975 F.2d 

81, 89 (3d Cir. 1992).

Flood does not meet the stringent requirements for mandamus relief in that he has 

an alternative remedy and other adequate means to obtain the relief he desires. Flood 

may seek recusal by filing a motion for recusal in the district court under the standards set 

forth in 28 U .S.C. § 144 and/or 28 U.S.C. § 455. See In re: Flood, 2012 WL 4513237 

(3d Cir. 2012). Any such request for recusal should be filed in a separate motion and 

should bear the title “motion for recusal or disqualification.” The item Flood filed on 

June 21, 2012, see Docket Entry No. 18, contains three unrelated requests and thus does 

not “state with particularity the grounds for seeking” recusal or disqualification, or “state 

the relief sought,” as required by Fed. R. Civ. Pro. 7(b)(1)(B)-(C). Mandamus also is not 

proper here because Flood has not shown a clear and indisputable right to recusal of 

either the District Judge or the Magistrate Judge on the basis of personal bias.

As Flood has correctly noted, however, he filed objections to Magistrate Judge 

Pesto’s June 6, 2012 and September 6, 2012 orders, and, as yet, District Judge Gibson has 

not considered them. Federal Rule of Civil Procedure 72(a) provides that “[w]hen a 

pretrial matter not dispositive of a party’s claim or defense is referred to a magistrate 

judge to hear and decide, the magistrate judge must promptly conduct the required 

proceedings and, when appropriate, issue a written order stating the decision. A party 

may serve and file objections to the order within 14 days after being served with a 

copy.... The district judge in the case must consider timely objections and modify or set 

aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. 
6

Pro. 72(a). See also 28 U.S.C. § 636(b)(1)(A) (“A judge of the court may reconsider any 

pretrial matter [designated to a magistrate judge] where it has been shown that the 

magistrate judge's order is clearly erroneous or contrary to law.”); Local Rule 72(C)(1)-

(2) (same). Accordingly, Flood is entitled to appeal the Magistrate Judge’s orders to the 

District Judge. Although District Judge Gibson has not yet ruled, we are that confident 

that the objections filed by Flood on June 21, 2012 and September 17, 2012, Docket 

Entry Nos. 18 and 25, in which he seeks review of Magistrate Judge Pesto’s orders of 

June 6, 2012 and September 6, 2012, will be considered in a timely manner.

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

Flood’s motion to stay to stay the district court proceedings and to strike any answer filed 

by the Government during the pendency of this mandamus petition is denied. Flood’s 

motion for appointment of a special master is denied.