DLD-188                                                        NOT PRECEDENTIAL

                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT
                                     ___________

                                             No. 14-1022
                                             ___________

                               IN RE: ANTHONY HARPER,
                                                   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. 12-cv-02809)
                         ____________________________________

                        Submitted Pursuant to Rule 21, Fed. R. App. P.
                                     February 27, 2014
               Before: SMITH, HARDIMAN and GREENBERG, Circuit Judges

                                 (Opinion filed: March 20, 2014)
                                           _________

                                             OPINION
                                             _________

PER CURIAM

       Anthony Harper has filed a petition for a writ of mandamus asking us to vacate his

criminal sentence. For the reasons that follow, we will deny the mandamus petition.

       In 1976, Harper was convicted in the Philadelphia County Court of Common Pleas of

first-degree murder, robbery, and other offenses. Harper was sentenced to life in prison on the

murder conviction.     The Pennsylvania Supreme Court affirmed Harper’s conviction and

sentence. Commonwealth v. Harper, 403 A.2d 536 (Pa. 1979). Harper sought state and

federal collateral relief without success.
       In 2012, Harper filed a habeas petition pursuant to 28 U.S.C. § 2254 in District Court

that was dismissed without prejudice as an unauthorized successive petition. Harper filed a

notice of appeal and asserted in this Court that his life sentence violates his Eighth Amendment

rights under Miller v. Alabama, 132 S. Ct. 2455 (2012), because he was a juvenile when he

committed his crimes. We construed Harper’s request for a certificate of appealability as an

application pursuant to 28 U.S.C. § 2244(b) to file a second or successive habeas petition. We

stayed the application pending decisions in In re Pendleton, C.A. No. 12-3617, and In re

Baines, C.A. No. 12-3996, in which the petitioners also sought to file second or successive

habeas petitions raising Miller claims.

       On May 23, 2013, while the stay was in effect, Harper filed another habeas petition in

District Court raising his Miller claim. On November 27, 2013, the District Court, noting that

we had since decided Pendleton and Baines, ordered the respondents to file a response to

Harper’s petition by December 18, 2013. The respondents did not do so and on December 26,

2013, Harper filed a motion for a default judgment. The District Court denied Harper’s motion

and ordered the respondents to file a response by January 23, 2014. The District Court noted

that the Clerk of Court had not served a copy of its November 27, 2013 order on the

respondents.

       On January 8, 2014, Harper filed the present mandamus petition asserting his claim

under Miller and asking us to vacate his sentence. Harper states that the respondents did not

respond to his habeas petition by December 18, 2013 and that in his § 2244 proceedings, we




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had ordered that extensions of time would not be granted to address the effect of Pendleton on

his § 2244 application.1

       The writ of mandamus traditionally has been used “to confine an inferior court to a

lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is

its duty to do so.” In re Patenaude, 210 F.3d 135, 140 (3d Cir. 2000) (internal quotation and

citations omitted).    “The writ is a drastic remedy that is seldom issued and its use is

discouraged.” Id. A petitioner must show that he has no other adequate means to attain the

desired relief and that the right to a writ is clear and indisputable. Id. at 141.

       Harper has not made such a showing. Harper has an adequate means to attain the

desired relief through the adjudication of his habeas petition. To the extent he contends that

the District Court erred in denying his motion for default judgment, he can pursue that

contention on appeal if the final judgment in his habeas proceedings is unfavorable. Harper

also has not shown that the right to a writ is clear and indisputable. As noted above, the

Pennsylvania Supreme Court has ruled that Miller does not apply retroactively to cases like

Harper’s, whose judgment of sentence was final when Miller was decided.




1
 On December 9, 2013, we granted Harper’s application for leave to file a second or successive
habeas petition, see C.A. No. 12-3532, and our order was entered on the District Court docket
on January 24, 2014. Harper’s case was then stayed, along with other cases in which we
granted § 2244(b) applications raising Miller claims, pending disposition of a petition for a
writ of certiorari to be filed in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013).
Cunningham held that Miller does not apply retroactively to cases on collateral review.
Cunningham, 81 A.3d at 11.
                                                  3
      Accordingly, we will deny the petition for a writ of mandamus. Harper’s motion and

supplemental motion for bail are also denied. See Landano v. Rafferty, 970 F.2d 1230, 1239

(3d Cir. 1992) (requiring extraordinary circumstances before bail will be afforded).




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