ALD-251 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2310

___________

IN RE: ARTHUR D’AMARIO, III,

Petitioner

____________________________________

On a Petition for Writ of Mandamus from the

United States District Court for the District of New Jersey

(Related to D.C. Civ. No. 09-cv-5468)

____________________________________

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

July 28, 2011

Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges

(Opinion filed : August 18, 2011)

_________

OPINION

_________

PER CURIAM

On May 11, 2011, Arthur D’Amario, III, filed this pro se petition for a writ of 

mandamus, seeking to compel the disqualification of Judge Paul S. Diamond, who, 

pursuant 28 U.S.C. § 292(b), is presiding over D’Amario’s collateral attack proceedings 

in the United States District Court for the District of New Jersey.1

 1

 Although D’Amario filed this mandamus petition in May 2011, he did not pay 

the associated filing fee, and he did not move to proceed in forma pauperis until midJuly. That motion was granted on July 19, 2011. 

 D’Amario also 
2

requests that we “order [his] immediate release.” For the reasons given below, we 

decline to take either course of action. The mandamus petition will be denied.

I.

D’Amario filed pro se motions under Fed. R. Crim. P. 33(a) and 28 U.S.C. § 2255 

to challenge his December 2006 conviction for violation of 18 U.S.C. § 115. D’Amario 

raised twenty-six grounds for relief. After the Government filed its answer, D’Amario 

requested that counsel be appointed. By order dated May 3, 2010, Judge Diamond 

appointed attorney Gil Scutti to represent D’Amario. Judge Diamond then denied 

D’Amario’s pro se Rule 33(a) and § 2255 motions without prejudice to his right to file 

those motions anew with the assistance of appointed counsel. 

Scutti, on behalf of D’Amario, adopted and filed a supplement to D’Amario’s two

primary motions. The Government filed a brief in response, and Scutti filed a reply. 

Scutti also moved for D’Amario’s “immediate release” pending disposition of the § 2255 

proceeding. By order dated May 17, 2011, Judge Diamond denied the motion for 

immediate release and denied D’Amario’s pro se recusal motion. On June 21, 2011, a 

hearing was held on D’Amario’s applications. Judge Diamond permitted the parties 

thirty days, following receipt of the hearing’s transcript, to file proposed findings of fact 

and conclusions of law. The parties were permitted thirty days after that to file 

“memoranda in rebuttal.” By our account, D’Amario’s collateral attack proceedings are 

moving along at an appropriate pace.

II.
3

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

circumstances. In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). A 

mandamus petitioner must demonstrate the following three requirements before a court 

can consider whether to issue the writ: “(1) no other adequate means exist to attain the 

relief he desires, (2) [his] right to issuance of the writ is clear and indisputable, and (3) 

the writ is appropriate under the circumstances.” Hollingsworth v. Perry, --- U.S. ---, 130 

S. Ct. 705, 710 (2010) (per curiam) (citation and internal quotations marks omitted). In 

addition, we have stated that “[m]andamus is a proper means for this court to review a 

district court judge’s refusal to recuse from a case pursuant to 28 U.S.C. § 455(a), where 

the judge’s impartiality might reasonably be questioned.” Alexander v. Primerica

Holdings, Inc., 10 F.3d 155, 163 (3d Cir. 1993). 

III.

As noted at the outset, with his mandamus petition D’Amario requests that this 

Court both “remove” Judge Diamond and “order [D’Amario’s] immediate release.”2

 2

 D’Amario also complains in passing that he “commenced the action 10/19/09, 

and the judge has declined to adjudicate it.” The complaint is unfounded. As our 

recitation of its procedural history should indicate, D’Amario’s case is progressing and 

we have no doubt that a resolution will be arrived at in due course. Cf. Madden v. Myers, 

102 F.3d 74, 79 (3d Cir. 1996) (noting our concern with the district court’s four months 

of inaction, but denying the mandamus petition because the adjudicatory delay did “not 

yet rise to the level of a denial of due process”). 

 

Judge Diamond denied substantively similar requests in his May 11, 2011 order. 

Because an order denying bail or interim release can be appealed prior to the 
4

culmination of collateral attack proceedings, see, e.g., United States v. Smith, 835 F.2d 

1048 (3d Cir. 1987); United States v. Swann, 194 F.3d 1307 (4th Cir. 1999), it cannot be 

said that D’Amario has no other recourse save mandamus. It is well-settled that the writ

is not to be used as a substitute for the regular appeals process. Cheney v. U.S. Dist. 

Court for D.C., 542 U.S. 367, 380-81 (2004). 

Furthermore, D’Amario’s request for disqualification of Judge Diamond, 

supported only by a litany of pejoratives3

 3

 D’Amario states that he “just obtained BOP documents under FOIA,” which 

reveal that Judge Diamond “asked the NJ Secret Service to indict me on a specious 

charge of ‘threatening’ him.” But D’Amario did not attach the purported BOP 

documents. 

, is insufficient to demonstrate that “a 

reasonable person, with knowledge of all the facts, would conclude that the judge’s 

impartiality might reasonable be questioned.” In re Kensington Int’l Ltd., 368 F.3d 289, 

301 (3d Cir. 2004); see also Liteky v. United States, 510 U.S. 540, 555 (1994) (“judicial 

rulings alone almost never constitute a valid basis for a bias or partiality motion”). 

Therefore, D’Amario’s right to relief in that regard is not “clear and indisputable.” 

Accordingly, D’Amario’s petition for a writ of mandamus will be denied.