BLD-004                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-3091
                                       ___________

                           IN RE: FREDERICK H. BANKS,
                                                Petitioner
                       ____________________________________

                     On a Petition for Writ of Mandamus from the
          United States District Court for the Western District of Pennsylvania
                  (Related to W.D. Pa. Crim. No. 2-15-cr-00168-001)
                      ____________________________________

                     Submitted Pursuant to Rule 21, Fed. R. App. P.
                                   October 6, 2016

          Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges

                           (Opinion filed: November 3, 2016 )
                                       _________

                                        OPINION*
                                        _________

PER CURIAM

       Pro se Petitioner Frederick H. Banks has filed a petition for a writ of mandamus

concerning the ongoing criminal case against him on charges of Interstate Stalking

(18 U.S.C. §§ 2261A(2) and 2), Wire Fraud (18 U.S.C. §§ 1343 and 2), Aggravated


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Identity Theft (18 U.S.C. § 1028A(a)(1)), and Making False Statements (18 U.S.C.

§ 1001(a)(3)). Upon motion by appointed defense counsel, the District Court began an

official inquiry into Banks’s competency to stand trial. During that inquiry, in April

2016, the District Court ordered a mental health evaluation to be performed at the Federal

Bureau of Prisons (“BOP”) facility in Butner, North Carolina. In the same order, the

District Court denied Banks’s counseled request to be released on bond pending trial.

The District Court also denied Banks’s pro se motions, noting that the motions were

denied without prejudice to being refiled by appointed counsel.

       In July 2016, Banks filed this mandamus petition. He alleges that the District

Court did not serve him with the April 2016 order in order to obstruct his appeal under

the Bail Reform Act. Banks states that counsel never provided him with a copy, and so

he first received actual notice of the order on July 1, 2016.1 He asserts that a writ of

mandamus is appropriate to reinstate his right to appeal from the April 2016 order and to

reverse the decision denying his release on bond. Banks also seeks mandamus relief to

order his appointed counsel to refile his motions, given counsel’s refusal to do so thus far.

       Mandamus is a drastic remedy reserved for the most extraordinary of

circumstances. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.

2005). 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


1
 Apparently, Banks does not dispute that counsel of record was duly served with notice
of the order.
                                           2
of the writ. See Haines v. Liggett Group, Inc., 975 F.2d 81, 89 (3d Cir. 1992) (citing

Kerr v. United States District Court, 426 U.S. 394, 403 (1976)). Even when a petitioner

shows the absence of other adequate means to obtain the requested relief, and also

establishes a “clear and indisputable” right to issuance of the writ, our exercise of

mandamus power is largely discretionary. See In re Kensington Int’l Ltd., 353 F.3d 211,

219 (3d Cir. 2003).

       Upon consideration of the circumstances presented here, we conclude that

mandamus relief is not warranted. The writ of mandamus may be 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 Diet Drugs Prods. Liab. Litig., 418 F.3d at

378 (quoting In re Patenaude, 210 F.3d 135, 140 (3d Cir. 2000)). Mandamus is not

appropriate as a substitute for an appeal from a decision by the District Court. See

Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 542 U.S. 367, 380-81 (2004); In re Diet

Drugs Prods. Liab. Litig., 418 F.3d at 378-79. We note that Banks alludes to an eleven-

month delay during the District Court’s determination of his competency. To the extent

that Banks alleges that mandamus relief is appropriate in light of the delay in his criminal

case while the question of his competency is being determined, we disagree that our

intervention is warranted. See Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996). It

appears from the record that the District Judge and the parties remain engaged in the

matter, and the proceedings have remained active in recent months.

       For these reasons, we will deny the petition for a writ of mandamus.
                                               3
