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


12-8-2005

In Re: Kitano
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4110




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Recommended Citation
"In Re: Kitano " (2005). 2005 Decisions. Paper 133.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/133


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DPS-385                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       NO. 05-4110
                                    ________________

                       IN RE: ALEXANDER BLANCO KITANO,

                                                     Petitioner
                        __________________________________

                       On a Petition for Writ of Mandamus from the
            United States District Court for the Middle District of Pennsylvania
                            (Related to Civ. No. 05-cv-00153)
                      _____________________________________

                       Submitted Under Rule 21, Fed. R. App. Pro.
                                  September 29, 2005

                BEFORE: ROTH, BARRY AND SMITH, CIRCUIT JUDGES

                                (Filed: December 8, 2005)
                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Alexander Kitano, an inmate at USP-Lewisburg, asks that we issue a writ of

mandamus ordering the District Court to rule on his petition for a writ of habeas corpus

under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 1651(a), and will deny

the petition.

       In 1987, Kitano pled guilty to the first-degree murder of a prison guard at a Guam

territorial prison. He was sentenced to life imprisonment with eligibility for parole in
fifteen years. The Guam Parole Board denied parole in 2002 and again in 2003. Kitano

eventually filed a petition for a writ of mandamus in the Guam Supreme Court, which has

yet to issue a ruling. Despite the ongoing proceedings in Guam, on January 24, 2005, he

filed a § 2254 petition in the District Court for the Middle District of Pennsylvania

seeking habeas relief for alleged procedural due process violations and the improper

imposition of a “public safety factor” prisoner classification. A response was filed on

March 30, 2005. Kitano responded on April 12. The District Court has not yet ruled on

the petition. On September 6, 2005, Kitano filed the instant request for mandamus relief

arguing that the District Court is unjustifiably delinquent in issuing a ruling.

       Mandamus is a drastic remedy available only in the most extraordinary of

situations in response to an act amounting to a judicial usurpation of power. In re

Nwanze, 242 F.3d 521, 524 (3d Cir. 2001). To justify such a remedy, a petitioner must

show that he has (i) no other adequate means of obtaining the desired relief and (ii) a

clear and indisputable right to issuance of the writ. Id. (quoting Hahnemann Univ. Hosp.

v. Edgar, 74 F.3d 456, 461 (3d Cir. 1996)).

       While some delays may be so prejudicial that they warrant mandamus relief, see

Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996); Johnson v. Rogers, 917 F.2d 1283,

1285 (10th Cir. 1990); Jones v. Shell, 572 F.2d 1278, 1280 (8th Cir. 1978), we do not

find the five-month delay at issue here to be so prejudicial that an issuance of the writ is

warranted. Accordingly, we will deny Kitano’s petition for a writ of mandamus.



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