                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-22-2005

In Re: Brian Tyson
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3529




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Recommended Citation
"In Re: Brian Tyson " (2005). 2005 Decisions. Paper 667.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/667


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HPS-123 (July 2005)                                     NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       NO. 05-3529
                                    ________________

                               IN RE: BRIAN TYSON,
                                                 Petitioner.
                       ____________________________________

                      On a Petition for Writ of Mandamus from the
           United States District Court for the Eastern District of Pennsylvania
                           (Related to Civ. No. 04-cv-01173)
                     _____________________________________

                 Submitted Under Rule 21, Fed. R. App. Pro.
                                July 29, 2005
     BEFORE: CHIEF JUDGE SCIRICA, WEIS and GARTH, CIRCUIT JUDGES
                          (Filed: August 22, 2005)
                        _______________________

                                       OPINION
                               _______________________

PER CURIAM

              Brian Tyson petitions for a writ of mandamus directing the Magistrate

Judge to issue a report and recommendation based on the claims he raised in his habeas

corpus petition. For the reasons that follow, we will deny the petition.

              Tyson is a Pennsylvania inmate serving a sentence for third degree murder.

On direct appeal, Tyson raised several claims of ineffective assistance of counsel. While

Tyson’s direct appeal was pending, the Pennsylvania Supreme Court decided



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Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), holding for the first time that claims

of ineffective assistance of counsel should be raised in collateral proceedings rather than

on direct appeal. Id. at 738. Relying on Grant, the Superior Court affirmed Tyson’s

conviction but dismissed his claims of ineffective assistance without prejudice to his

raising them on collateral review. The Pennsylvania Supreme Court subsequently denied

Tyson’s petition for allowance of appeal.

              While his petition for allowance of appeal was pending before the

Pennsylvania Supreme Court, Tyson filed a habeas corpus petition in the District Court.

In his habeas petition, he alleged that the Superior Court’s application of Grant

constitutes an ex post facto and due process violation. The Magistrate Judge to whom the

habeas petition was referred concluded that Tyson has not exhausted state court remedies

“with respect to his ineffectiveness claims,” and recommended dismissing the habeas

petition without prejudice. The District Court adopted the Magistrate Judge’s report and

recommendation, dismissed the habeas petition without prejudice, and declined to issue a

certificate of appealability. Tyson filed a notice of appeal; his request for a certificate of

appealability is pending in this Court. (Tyson v. Meyers, C.A. No. 05-2601.)

              In his mandamus petition, Tyson argues that the Magistrate Judge

misconstrued the claims he presented in his habeas petition. He asserts that he is entitled

to a report and recommendation based on the claims he actually raised, not on the

Magistrate Judge’s recharacterization of his claims. Accordingly, he asks us to order the



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Magistrate Judge to issue such a report and recommendation.

              We will deny Tyson’s mandamus petition because a writ of mandamus

should not issue where relief may be obtained through an ordinary appeal. See

Hahnemann University Hosp. v. Edgar, 74 F.3d 456, 461 (3d Cir. 1996); Oracare DPO,

Inc. v. Merin, 972 F.2d 519, 523 (3d Cir. 1992). Tyson has pursued an appeal, which is

the proper procedure for challenging the District Court’s dismissal of his habeas petition,

including the Magistrate Judge’s construction of his claims.




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