DLD-305                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-2467
                                       ___________

                    In Re: ROER ALFREDO DAVILA HERRERA,
                                                     Petitioner
                      ____________________________________

                      On a Petition for Writ of Mandamus from the
           United States District Court for the Eastern District of Pennsylvania
                         (Related to Cr. No. 2-06-cr-00537-003)
                      ____________________________________

                     Submitted Pursuant to Rule 21, Fed. R. App. P.
                                   August 20, 2015

            Before: FISHER, SHWARTZ and GREENBERG, Circuit Judges

                             (Opinion filed: August 26, 2015)
                                        _________

                                        OPINION*
                                        _________

PER CURIAM

       Pro se petitioner Roer Alfredo Davila Herrera has filed a petition for writ of

mandamus. For the reasons set forth below, we will deny Herrera’s petition.




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
         In June 2010, a jury in the Eastern District of Pennsylvania found Herrera guilty of

conspiracy to distribute five kilograms or more of cocaine and possession with intent to

distribute five kilograms or more of cocaine, and he was subsequently sentenced to 360

months’ imprisonment. He appealed his sentence, and we affirmed. See United States v.

Ruiz-Herrera, 503 F. App’x 135 (3d Cir. 2012). After other proceedings not relevant

here, on March 20, 2015, Herrera filed a document titled, “Post-Conviction Relief

Seeking Court to Overturn Conviction for Immediate Release.” Herrera claimed that his

conviction was based on a case of mistaken identity. 1

         On June 8, 2015, Herrera’s motion for post-conviction relief remained pending,

and he filed a mandamus petition in this Court requesting that we direct the District Court

to rule upon that motion. Soon thereafter, the District Court denied the motion, and

Herrera filed a timely notice of appeal that has been docketed at C.A. No. 15-2550. The

Clerk of this Court asked Herrera to inform the Court whether, in light of the District

Court’s order, he wished to withdraw his mandamus petition, and he responded that he

believed his petition should be granted because the District Court had erred in denying

his post-conviction motion.

         We will deny Herrera’s petition. Mandamus is a drastic remedy that is granted in

only 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 establish that he

has “no other adequate means” to obtain the relief requested, and that he has a “clear and
1
    The District Court has previously rejected a similar claim. See D.C. dkt. #292.
                                               2
indisputable” right to issuance of the writ. Madden v. Myers, 102 F.3d 74, 79 (3d Cir.

1996). Mandamus may not be used as a substitute for appeal. See In re Diet Drugs

Prods. Liab. Litig., 418 F.3d at 378–79.

       Here, to the extent that Herrera has asked us to order the District Court to rule on

his post-conviction motion, he has already received the relief that he requested, and

consequently, there is no basis for us to intervene. To the extent that Herrera has asked

us to review the District Court’s denial of his motion for post-conviction relief,

mandamus relief is unavailable because he may obtain that review in his pending appeal

in C.A. No. 15-2550. See In re Kensington Int’l Ltd., 353 F.3d 211, 219 (3d Cir. 2003)

(“If, in effect, an appeal will lie, mandamus will not.”).

       Accordingly, we will deny Herrera’s mandamus petition.




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