2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-21-2015

In Re: Sylvester Andrews

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2015

This July is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University

School of Law Digital Repository. It has been accepted for inclusion in 2015 Decisions by an authorized administrator of Villanova University School of

Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"In Re: Sylvester Andrews" (2015). 2015 Decisions. Paper 774.

http://digitalcommons.law.villanova.edu/thirdcircuit_2015/774
CLD-260 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-2532

___________

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.

July 9, 2015

Before: FUENTES, GREENAWAY, JR. and VANASKIE, Circuit Judges

(Opinion filed: July 21, 2015)

_________

OPINION*

_________

PER CURIAM

Sylvester Andrews petitions for a writ of mandamus in which he requests that we 

recall the mandate in an earlier appeal. For the reasons below, we will deny the petition.

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 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

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. See No. 03-3046. 

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. On May 20, 2015, we denied Andrews’s 

petition for rehearing.

On June 25, 2015, Andrews filed the instant mandamus petition. He argued that 

we erred in deciding the merits of his § 2255 claims in No. 14-4013 and requested that 

we recall the mandate in that case.

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 

 

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

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 petitioning for rehearing of our decision in 

No. 14-4013. In fact he did petition for rehearing, albeit unsuccessfully. 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. And because his claims are without 

merit, it would be an abuse of discretion to recall the mandate. See Calderon v. 

Thompson, 523 U.S. 538, 558 (1998) (abuse of discretion to recall mandate unless acting 

to avoid miscarriage of justice). 

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