                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-21-2007

In Re:Raphael Mendez
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1113




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Recommended Citation
"In Re:Raphael Mendez " (2007). 2007 Decisions. Paper 1441.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1441


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HLD-63                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                        No. 07-1113
                                     ________________

                               IN RE: RAPHAEL MENDEZ,
                                            Petitioner

                           _______________________________

                      On a Petition for Writ of Mandamus from the
                      District Court for the District of Virgin Islands
                      (Related to D. V.I. Crim. No. 90-0043-G-01)
                      _____________________________________

                      Submitted Under Rule 21, Fed. R. App. P.
                                   March 9, 2007
           Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges.

                                 (Filed: March 21, 2007)



                                _______________________

                                        OPINION
                                _______________________

PER CURIAM.

              Pro se petitioner Raphael Mendez seeks a writ of mandamus compelling the

District Court for the District of the Virgin Islands to order his return to the Virgin Islands

for a hearing pursuant to 18 U.S.C. § 4247(b). Mendez is presently committed at the

Federal Medical Center in Rochester, Minnesota (“FMC-Rochester”).


                                              1
              In 1990, Mendez was indicted in the Virgin Islands for assault with a deadly

weapon and related offenses. See United States v. Mendez, Crim A. No. 90-0043 (D.

V.I). In 1991, the Virgin Islands District Court found Mendez to be suffering from a

mental disease or defect rendering him mentally incompetent to stand trial. Pursuant to

18 U.S.C. § 4241(d), Mendez was committed to the custody of the Attorney General for

treatment at the Mental Health Division of the Federal Correctional Institution at Butner,

North Carolina (“FCI-Butner”).

              The warden of FCI-Butner filed a Certificate of Mental Disease or Defect

and Dangerousness and a petition for civil commitment pursuant to § 4246, in the United

States District Court for the Eastern District of North Carolina (“District Court”). See

United States v. Raphael Mendez, Civ. A. No. 91-350-HC (E.D. N.C.). In September

1991, the District Court granted the petition and Mendez was committed to the custody of

the Attorney General pursuant to § 4246(d). The District Court ordered Mendez’s

conditional release in 1996. He was re-committed in 2001 and his conditional release

was revoked in November, 2002. Mendez challenged his re-commitment under § 4246,

claiming, among other things, that the District Court lacked jurisdiction because he was

charged with criminal offenses under Virgin Islands Territorial law, not federal law. The

Fourth Circuit Court of Appeals affirmed the judgment of the District Court on

jurisdictional and substantive grounds.

              Mendez has had one hearing pursuant to 18 U.S.C. § 4247(h), at which the

District Court determined that Mendez met the criteria for continued commitment under §

                                             2
4246. In October 2006, Mendez requested another § 4247(h) hearing, scheduled for

February 6, 2007, at the United States District Court in North Carolina, via teleconference

from the FMC-Rochester. Mendez also filed a pro se motion in the District Court seeking

a change of venue to the Virgin Islands, which the District Court denied on January 17,

2007. Mendez’s appeal of the order denying his motion for change of venue is pending in

the Fourth Circuit Court of Appeals.

              Mendez filed this mandamus petition in December 2006, asserting that the

District Court in the Virgin Islands is the proper court to hold the § 4247(h) hearing

because it has jurisdiction over his criminal indictment. He seeks a writ of mandamus

ordering his transfer to the Virgin Islands for the § 4247(h) hearing.

              The writ of mandamus is an extraordinary remedy. To justify the Court’s

use of this remedy, a petitioner must demonstrate that he has a clear and indisputable right

to the writ. Kerr v. United States District Court, 426 U.S. 394, 403 (1976); DeMasi v.

Weiss, 669 F.2d 114, 117 (3d Cir. 1982). Here, Mendez unsuccessfully challenged the

District Court’s jurisdiction to preside over his civil commitment proceedings in 2002. In

accordance with § 4247(h), his hearing is being held in the court that ordered his

commitment. The District Court denied his request for a change of venue to the Virgin

Islands. His appeal from that order is pending in the Fourth Circuit Court of Appeals.

Mendez has not shown that he has a clear and indisputable right to a writ of mandamus

ordering the transfer of the § 4247(d) hearing to the Virgin Islands and, thus, he has not

shown a clear and indisputable right to be transferred to a facility there.

                                              3
          For the foregoing reasons, the petition for a writ of mandamus will be

denied.




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