                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-30-2006

In Re: Gene Herrold
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5576




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Recommended Citation
"In Re: Gene Herrold " (2006). 2006 Decisions. Paper 1361.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1361


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HPS -28 (January 2006)                                 NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-5576
                                   ________________

                          IN RE: GENE ALLEN HERROLD,
                                          Petitioner


                     On a Petition for Writ of Mandamus from the
          United States District Court for the Western District of Pennsylvania
                         (Related to W.D. Pa. No. 05-cv-0205J
                                     ____________
                      Submitted Under Rule 21, Fed. R. App. Pro.
                                    March 29, 2006
         Before: CHIEF JUDGE SCIRICA, WEIS AND GARTH, CIRCUIT JUDGES

                             (Filed: March 30, 2006)
                              _______________________

                                     OPINION
                              _______________________


PER CURIAM.

             Pro se petitioner Gene Allen Herrold, a federal prisoner, seeks a writ of

mandamus to compel the United States District Court for the Western District of

Pennsylvania to decide the merits of his 28 U.S.C. § 2241 habeas petition, which was

filed on April 15, 2005. Alternatively, Herrold seeks an order from the District Court

directing the respondent to show cause why the § 2241 petition should not be granted.



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We will deny the petition as moot.

              In April 2005, Herrold filed a habeas petition pursuant to 28 U.S.C. § 2241.

In the petition, he attacked his conviction and sentence stemming from his violation of

federal firearm laws in 1991. On or about August 1, 2005, Herrold filed a Motion for

Disposition to prod the District Court to rule on his habeas petition.

              The remedy of mandamus is reserved for the most extraordinary of

circumstances. DeMasi v. Weiss, 669 F.2d 114, 117 (3d Cir. 1982). In order to ensure

that mandamus is sparingly granted, a petitioner seeking a writ of mandamus must

demonstrate that no other adequate means are available to obtain the desired relief and

that the right to issuance of the writ is “clear and indisputable.” Allied Chem. Corp. v.

Daifon, Inc., 449 U.S. 33, 35 (1980).

              Here, on March 2, 2006, the District Court denied Herrold’s habeas petition

without prejudice to his filing a successive motion to vacate if authorized by this court.

Moreover, the District Court forwarded Herrold’s habeas petition to this court as an

application for authorization to file a successive motion to vacate. In light of the District

Court’s order, Herrold’s petition for a writ of mandamus will be denied as moot.




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