CLD-254                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 13-2312
                                       ___________

                            IN RE: MICHAEL RINALDI,
                                     Petitioner
                       ____________________________________

                      On a Petition for Writ of Mandamus from the
           United States District Court for the Middle District of Pennsylvania
                       (Related to Crim. No. 3:98-cr-00294-002)
                      ____________________________________

                     Submitted Pursuant to Rule 21, Fed. R. App. P.
                                    May 23, 2013

             Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges

                              (Opinion filed: June 11, 2013)
                                       _________

                                        OPINION
                                        _________

PER CURIAM

       Michael Rinaldi, a federal inmate proceeding pro se, has filed in this Court a

pleading titled “Writ of Error,” which has been docketed as a petition for a writ of

mandamus under 28 U.S.C. § 1651. In this petition, Rinaldi asks this Court to direct the

District Court to dismiss the indictment against him.

       In 1999, Rinaldi was convicted of various drug trafficking and firearms charges

and sentenced to 248 months’ incarceration. We affirmed Rinaldi’s judgment on direct
appeal. See United States v. Rinaldi, 248 F.3d 1131 (3d Cir. 2000). Rinaldi then

unsuccessfully pursued post-conviction relief pursuant to 28 U.S.C. § 2255.

       In June 2012, Rinaldi filed a motion to dismiss the indictment, alleging that the

indictment was defective because the Government had failed to allege a nexus to

interstate commerce for his drug trafficking offenses. As relief, he asked the District

Court to reverse and vacate his conviction. The District Court denied his motion,

explaining (i) that Rinaldi should be proceeding under 28 U.S.C. § 2255 after obtaining

authorization from this Court to file a second or successive § 2255 motion and (ii) that his

motion to dismiss was untimely filed. We declined to issue a certificate of appealability

and summarily affirmed the denial of the motion to dismiss. See United States v. Rinaldi,

No. 12-2938 (order entered Dec. 28, 2012). On May 8, 2013, Rinaldi filed the instant

petition for a writ of mandamus, seeking to have this Court direct the District Court to

dismiss the indictment in his case because of the Government’s failure to allege the

interstate commerce nexus.

       Mandamus is a drastic remedy that is granted only in extraordinary cases. In re

Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). To demonstrate that

mandamus is appropriate, a petitioner must demonstrate that “(1) no other adequate

means exist to attain the relief he desires, (2) the party’s right to issuance of the writ is

clear and indisputable, and (3) the writ is appropriate under the circumstances.”

Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam) (internal quotation marks

and citation omitted).
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       Rinaldi has not demonstrated a clear and indisputable right to issuance of the writ,

as he is not asking us “to confine the [District 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 (internal citation and quotation omitted).

Here, he is attempting to appeal for a second time the District Court’s denial of his

motion to dismiss the indictment, which he cannot do through a mandamus petition. See

Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380-81 (2004) (mandamus is not a substitute for

appeal). Instead, he could have petitioned the United States Supreme Court for a writ of

certiorari to review our December 28, 2012 order denying him relief.1

       For the foregoing reasons, we will deny the petition for writ of mandamus.




1
  In any event, it is well settled, and Congress has explicitly noted, that drug trafficking
activities affect interstate commerce. See 21 U.S.C. § 801(3) (“[i]ncidents of the traffic
which are not an integral part of the interstate or foreign flow, such as manufacture, local
distribution, and possession, nonetheless have a substantial and direct effect on interstate
commerce”). Moreover, federal drug trafficking statutes are valid exercises of Congress’
power under the Commerce Clause. See, e.g., United States v. Orozco, 98 F.3d 105, 107
(3d Cir. 1996). Finally, to the extent that Rinaldi asserts that the District Court lacked
jurisdiction because of the alleged defects in the indictment, that argument was rejected
by the Supreme Court in United States v. Cotton, 535 U.S. 625, 630 (2002).
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