                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 11-1570
                                      ___________


                             IN RE: CARL WHITEHEAD,
                                               Appellant

                       ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                        (D.C. Civil Action No. 2-10-mc-00356)
                      District Judge: Honorable Gary L. Lancaster
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 15, 2011

   Before: SCIRICA, GREENAWAY, JR. and VAN ANTWERPEN, Circuit Judges

                                  (Filed: April 23, 2012)
                                       ___________

                               OPINION OF THE COURT
                                    ___________

PER CURIAM.

       Whitehead, a Pennsylvania prisoner, is currently serving a thirty-five to seventy

year sentence following his conviction for various crimes relating to the sexual assault of

his seven-month-old infant daughter. Presently, he appeals the District Court’s denial of

leave to file a petition to perpetuate testimony under Federal Rule of Civil Procedure 27

without prepayment of fees. He claimed that he needed to perpetuate the testimony of
four individuals involved in his state criminal trial, two jurors and two court employees,

to invalidate his conviction via a petition for a writ of habeas corpus and thereby allow

him to pursue a civil rights complaint. We have jurisdiction under 28 U.S.C. § 1291. See

Remick v. Manfredy, 238 F.3d 248, 254 (3d Cir. 2001).

       Whitehead has already petitioned for, and been denied, a writ of habeas corpus,

and has not been authorized by this Court to file another. Whitehead v. Rozum, No. 08-

259, 2008 WL 3166695 (W.D. Pa. 2008), certificate of appealability denied, No. 08-4423

(3d Cir. 2009). Accordingly, he cannot show that he “expects to be a party to an action

cognizable in a United States court” as required by Rule 27(a)(1)(A). 28 U.S.C.

§ 2244(b)(3)(A). Even if he could, Rule 27 is not a substitute for discovery; rather, it is

“available in special circumstances to preserve testimony which could otherwise be lost.”

Ash v. Cort, 512 F.2d 909, 912 (3d Cir. 1975). Whitehead has made no attempt to

demonstrate that the testimony of three of his putative witnesses was in danger of being

lost; as to the fourth, he asserted only that she seemed elderly and walked with a cane.

Whitehead’s subjective belief that she appeared old, absent any other indication of her

age, is insufficient to warrant the perpetuation of the testimony Whitehead seeks. See id.,

at 913; cf. Texaco, Inc. v. Borda, 383 F.2d 607 (3d Cir. 1967) (allowing perpetuation of

the testimony of a witness known to be 71-years-old).

       For the foregoing reasons, we agree with the District Court that Whitehead did not

demonstrate that the perpetuation of that testimony would “prevent a failure or delay of


                                              2
justice.” Fed. R. Civ. P. 27(a)(3). We affirm on that basis. 1




1
 Our resolution of this case on the merits of Whitehead’s Rule 27 petition avoids the
need to decide whether Rule 27 petitions provide a basis to proceed in forma pauperis.
                                             3
