CLD-331                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-2375
                                       ___________

                          IN RE: EDWARD G. MCCUSKER,
                                                  Petitioner
                       ____________________________________

                      On a Petition for Writ of Mandamus from the
           United States District Court for the Eastern District of Pennsylvania
                    (Related to E.D. Pa. Civ. No. 2-09-cr-00771-001)
                      ____________________________________

                     Submitted Pursuant to Rule 21, Fed. R. App. P.
                                   August 10, 2017

              Before: SHWARTZ, RENDELL and FISHER, Circuit Judges

                            (Opinion filed: September 8, 2017)
                                        _________

                                        OPINION*
                                        _________

PER CURIAM

       Pro se petitioner Edward McCusker has filed a petition for a writ of mandamus

seeking the relief described below. We will deny the petition.

       In 2011, Edward McCusker was convicted in the United Stated District Court for

the Eastern District of Pennsylvania of mail fraud, wire fraud, and related crimes and was

sentenced to 60 months of imprisonment. McCusker appealed but subsequently

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
withdrew his appeal. United States v. Edward McCusker, No. 14-1868 (order entered on

October 2, 2014). McCusker has on numerous occasions attempted to collaterally

challenge his convictions, claiming, inter alia, that his direct appeal counsel provided

ineffective assistance by withdrawing his appeal and proceeding with a motion under 28

U.S.C. § 2255 instead. McCusker filed three motions to vacate sentence pursuant to 28

U.S.C. § 2255, all of which were denied by the District Court. This Court declined to

issue certificates of appealability to McCusker to appeal these denials. United States v.

Edward McCusker, No. 16-3242 (order entered on October 20, 2016); United States v.

Edward McCusker, No. 16-3928 (order entered on March 17, 2017). This Court also

denied his application to file a second or successive motion to vacate. In re: Edward

McCusker, No. 16-2152 (order entered on May 25, 2016).

       McCusker now petitions this Court for a writ of mandamus. McCusker seeks to

have his direct appeal rights reinstated based on his direct appeal counsel’s alleged

misconduct. McCusker also seeks immediate release and an order directing the District

Court to rule on pending motions. McCusker has also filed a motion for bail pending

appeal.

       A writ of mandamus is an extraordinary remedy. See Kerr v. U.S. Dist. Ct., 426

U.S. 394, 402 (1976); In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.

2005). To obtain mandamus relief, a petitioner must establish that “(1) no other adequate

means exist to attain the relief he desires, (2) [his] right to issuance of the writ is clear

and indisputable, and (3) the writ is appropriate under the circumstances.” Hollingsworth
                                                2
v. Perry, 558 U.S. 183, 190 (2010) (per curiam) (internal quotation marks, alteration

omitted). Mandamus cannot be used as a substitute for an appeal. Madden v. Myers, 102

F.3d 74, 77 (3d Cir. 1996). Moreover, a § 2255 motion filed in the sentencing court is

the presumptive means for a federal prisoner to challenge the validity of a conviction or

sentence. See Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). McCusker

previously filed numerous § 2255 motions which the District Court denied. If McCusker

wishes to collaterally challenge his conviction or sentence by filing a second or

successive § 2255 motion, he must do so by complying with the gatekeeping

requirements prescribed by 28 U.S.C. § 2244 and § 2255(h). He may not use a

mandamus petition to evade these requirements. See Massey v. United States, 581 F.3d

172, 174 (3d Cir. 2009) (per curiam); United States v. Baptiste, 223 F.3d 188, 189-90 (3d

Cir. 2000) (per curiam).

       To the extent McCusker requests that this Court direct the District Court to rule on

his Rule 60(b) motion or his summary judgment motion, McCusker has not demonstrated

a clear and indisputable right to relief. The District Court denied McCusker’s Rule 60(b)

motion, in which McCusker again argued that appellate counsel committed fraud, on

November 7, 2016. Although the District Court has not ruled on McCusker’s motion for

summary judgment, this motion is moot to the extent he requested that the District Court

act on his Rule 60(b) motion. To the extent McCusker again requested relief based on

appellate counsel’s alleged misconduct, the District Court has already denied relief on

this claim multiple times. Moreover, at the time McCusker petitioned for mandamus
                                             3
relief, his motion for summary judgment had only been pending for two months. The

District Court has recently ruled on McCusker’s third § 2255 motion and has been

diligently disposing of McCusker’s numerous filings. There is nothing in the record to

demonstrate that the District Court has failed to exercise its jurisdiction. See Madden,

102 F.3d at 79 (“[A]n appellate court may issue a writ of mandamus on the ground that

undue delay is tantamount to a failure to exercise jurisdiction[.]”). Accordingly, we will

deny McCusker’s mandamus petition. McCusker’s motions to add exhibits to his

mandamus petition are granted and his motion for bail pending appeal is denied.




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