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


2-7-2006

In Re: Johnny Lopez
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1108




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Recommended Citation
"In Re: Johnny Lopez " (2006). 2006 Decisions. Paper 1625.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1625


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HPS-24 (January 2006)                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       NO. 06-1108
                                    ________________

                              IN RE: JOHNNY LOPEZ,
                                                 Petitioner
                       ____________________________________

                      On Petition for a Writ of Mandamus from the
                           United States District Court for the
                                   District of Delaware
                        (Related to D. Del. Civ. No. 05-cv-00019)
                      _____________________________________

                     Submitted Under Rule 21, Fed. R. App. P.
                                January 27, 2006
     Before: CHIEF JUDGE SCIRICA, WEIS AND GARTH, CIRCUIT JUDGES

                                 (Filed: February 7, 2006)
                                _______________________

                                        OPINION
                                _______________________

PER CURIAM.

              Johnny Lopez has filed a mandamus petition pursuant to 28 U.S.C. § 1651,

seeking to have this Court instruct the United States District Court for the District of

Delaware to compel respondents in the underlying habeas corpus proceeding to “produce

evidence” used to secure a search of his home and subsequently convict him of a drug

trafficking offense in 2003.



                                              1
              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 issuance of 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). No such showing has been made in

the instant case. A review of the record in the underlying proceeding shows that the state

court record was filed in the District Court on August 1, 2005. If Lopez believes that the

state court record is incomplete, he is certainly free to bring that concern to the District

Court’s attention. Any challenge to the actual state court conviction that is the subject of

the petition filed pursuant to 28 U.S.C. § 2254, however, must first be resolved by the

District Court. Lopez will have an opportunity for appellate review in this Court after the

District Court has entered a final order disposing of his § 2254 petition.

              Accordingly, we will deny the petition.




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