ALD-141                                                          NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                        No. 13-4795
                                        ___________

                                IN RE: MARK GREEN,
                                                 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. Crim. No. 08-cr-00044)
                        ____________________________________

                      Submitted Pursuant to Rule 21, Fed. R. App. P.
                                    February 6, 2014
            Before: RENDELL, FISHER and GREENAWAY, JR., Circuit Judges

                             (Opinion filed: February 19, 2014)
                                         _________

                                         OPINION
                                         _________

PER CURIAM

       Mark Green petitions for a writ of mandamus, asking us to direct the United States

District Court for the Eastern District of Pennsylvania to vacate his conviction and

dismiss the indictment because of a speedy trial violation. In the alternative, he asks that

we construe his petition as a petition for a writ of audita querela. We will deny the

petition.

       Green was arrested in December 2007 and indicted in January 2008 on five

counts, including access device conspiracy under 18 U.S.C. § 1029(b)(2), two counts of
unauthorized use of an access device under 18 U.S.C. § 1029(a)(2), and two counts of

aggravated identity theft under 18 U.S.C. § 1028A(a)(1). On November 4, 2009, after a

trial at which Green elected to proceed pro se with standby counsel, a jury convicted

Green on four of the five counts.

       At Green’s request, the District Court appointed new counsel who filed an

omnibus post-verdict motion in April 2010, including a claimed violation of the Speedy

Trial Act. The District Court denied the motion, “after considering Green’s Speedy Trial

Act claim in some detail.” United States v. Green, 516 F. App’x 113, 121 (3d Cir. 2013).

We carefully examined Green’s Speedy Trial Act claim and a related Sixth Amendment

Speedy Trial Claim on direct appeal and affirmed the District Court’s holding that

Green’s rights to a speedy trial had not been violated. Id. at 121-25.

       Green’s petition argues that when calculating whether his speedy trial rights were

violated, the District Court erred by failing to mention that it had orally set a trial date for

February 2, 2009, at a bail hearing in August 2008. Green argues that this omission

misled our Court in its calculations, as the speedy trial clock should have restarted on the

February date when trial was scheduled. Green contends that failing to correct this error

would cause a miscarriage of justice.

       The writ of mandamus “is a drastic remedy that is seldom issued and its use is

discouraged.” In re Patenaude, 210 F.3d 135, 140 (3d Cir. 2000) (internal quotation and

citation omitted). 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.

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Mandamus is not a substitute for an appeal. In re Chambers Dev. Co., Inc., 148 F.3d

214, 226 (3d Cir. 1998).

       Mandamus relief is not available here. Green had “adequate means to attain the

relief he desires” through a direct appeal. Kerr v. U.S. Dist. Ct., 426 U.S. 394, 403

(1976). His failure to succeed on appeal does not equate to a lack of available means to

attain relief. 1 We will deny the petition for a writ of mandamus.




1
  Further, Green has not shown a clear and undisputable right to relief, given this Court’s
previous holdings. We specifically considered the February 2, 2009 trial date in our
opinion denying him relief on direct appeal, noting that nothing in the record showed
why the District Court did not file an order scheduling trial for February 2, and noting
that “[a]ny negligence in failing to insist that the District Court adhere to the court’s oral
commitment to set a February 2009 trial date is attributable to both Green’s attorney and
the government.” Green, 516 F. App’x at 118, 124. Green also raised an argument
regarding the effect of the February 2009 trial date in a petition for rehearing, which we
similarly denied. C.A. No. 11-2454, order entered June 13, 2013.

                                              3
