2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-6-2015

In Re: Sylvester Andrews

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Recommended Citation

"In Re: Sylvester Andrews" (2015). 2015 Decisions. Paper 459.

http://digitalcommons.law.villanova.edu/thirdcircuit_2015/459
DLD-186 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-1968

___________

IN RE: SYLVESTER ANDREWS,

Petitioner

____________________________________

On a Petition for Writ of Mandamus from the

United States District Court for the Eastern District of Pennsylvania

(Related to Crim. No. 2-92-cr-00671-008)

____________________________________

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

April 30, 2015

Before: FISHER, SHWARTZ and GREENBERG, Circuit Judges

(Opinion filed: May 6, 2015)

_________

OPINION*

_________

PER CURIAM

Sylvester Andrews petitions for a writ of mandamus directing the District Court to 

vacate several orders in his criminal proceedings. For the reasons below, 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

Andrews was convicted in 1993 of various conspiracy, drug trafficking, and 

weapons offenses. He was sentenced to life in prison for the drug offenses and a 

consecutive sentence of forty years on the weapons charges.1 We affirmed his conviction 

and sentence on appeal. In 2001, Andrews filed a motion pursuant to 28 U.S.C. § 2255 

which the District Court denied as time-barred. On appeal, we denied his request for a 

certificate of appealability. Andrews then filed a motion to expand the record which the 

District Court denied by order entered June 10, 2003. Andrews appealed, and we denied 

his request for a certificate of appealability. See C.A. No. 03-3046. 

In January 2014, Andrews filed a motion pursuant to Fed. R. Civ. P. 60(b) seeking 

to vacate the District Court’s denial of his § 2255 motion as time-barred. The District 

Court denied the motion by order entered April 23, 2014. Andrews filed an appeal, and 

his request for a certificate of appealability was denied. See C.A. No. 14-2675. 

In September 2014, Andrews filed another § 2255 motion which the District Court 

dismissed as second or successive. Andrews appealed, and in our April 20, 2015 order 

denying his application for a certificate of appealability, we noted that his claims of 

actual innocence, prosecutorial misconduct, counsel’s failure to investigate alibi 

witnesses, and sentencing error based on Apprendi v. New Jersey, 530 U.S. 466, 490 

(2000), were meritless. See C.A. No. 14-4013.

 

1

In 2008, his life sentence was reduced to thirty years after he filed a successful motion 

pursuant to 18 U.S.C. § 3582(c)(2). His sentence on one of the weapons charges was 

later vacated under Bailey v. United States, 516 U.S. 137 (1995).
3

Meanwhile, in February 2015, Andrews filed another Rule 60(b) motion. He 

again argued that the denial of his original § 2255 motion as time-barred should be 

vacated. The District Court denied the motion as untimely and because Andrews had not 

shown extraordinary circumstances. It also concluded that Andrews’s claims of actual 

innocence, prosecutorial misconduct, counsel’s failure to investigate alibi witnesses, and 

Apprendi error were without merit. Andrews’s appeal from that order is pending. See

C.A. No. 15-1925.

On April 14, 2015, Andrews filed the instant mandamus petition. He seeks an 

order directing the District Court to vacate its orders of September 26, 2002,2June 10, 

2003, and April 23, 2014. He requests that we order the District Court to rule on the 

merits of his § 2255 claims.

The writ of mandamus will issue only in extraordinary circumstances. See Sporck 

v. Peil, 759 F.2d 312, 314 (3d Cir. 1985). As a precondition to the issuance of the writ, 

the petitioner must establish that there is no alternative remedy or other adequate means 

to obtain the desired relief, and the petitioner must demonstrate a clear and indisputable 

right to the relief sought. Kerr v. U.S. Dist. Court, 426 U.S. 394, 403 (1976). A writ is 

not a substitute for an appeal. See In re Briscoe, 448 F.3d 201, 212 (3d Cir. 2006).

Andrews had the alternate remedy of challenging the District Court’s orders 

through appeal. In fact he did appeal, albeit unsuccessfully, the District Court’s June 10, 

 

2

In its September 26, 2002 order, the District Court denied Andrews’s motion for an 

extension of time to file his § 2255 motion.
4

2003, and April 23, 2014 orders. See C.A. Nos. 03-3046 & 14-2675. Moreover, he has 

not shown a clear and indisputable right to the relief he seeks; we have already 

determined that his § 2255 claims are without merit.

For the above reasons, we will deny the mandamus petition.