DLD-155-E                                                                         NOT PRECEDENTIAL

                              UNITED STATES COURT OF APPEALS
                                   FOR THE THIRD CIRCUIT
                                        ___________

                                                  No. 18-1556
                                                  ___________

                                IN RE: MICHAEL J. PENDLETON,
                                                      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. Civ. No. 2-18-cv-00044)
                       District Court Judge: Honorable Keith A. Pesto
                         ____________________________________

                         Submitted Pursuant to Rule 21, Fed. R. App. P.
                                       March 16, 2018
                  Before: JORDAN, SHWARTZ and KRAUSE, Circuit Judges

                                      (Opinion filed: March 23, 2018)
                                                _________

                                                   OPINION *
                                                   _________

PER CURIAM

         Michael Pendleton petitions for a writ of mandamus pursuant to 28 U.S.C. § 1651.

Pendleton asks this Court to compel the District Court of the Western District of

Pennsylvania to issue a preliminary injunction preventing the Alleghany County District




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding
precedent.
Attorney’s Office from retrying or resentencing Pendleton relating to a 1999 conviction.

For the following reasons, we will deny the petition.

       Pendleton is currently serving a prison sentence at the State Correctional

Institution in Somerset, Pennsylvania, as a result of a conviction in the Allegheny County

Court of Common Pleas. Pendleton’s sentence was recently vacated, and he is scheduled

for a resentencing hearing on April 11, 2018.

       In January 2018, Pendleton filed a civil rights action in the District Court for the

Western District of Pennsylvania, and a motion for a preliminary injunction seeking to

prevent the Alleghany County Districts Attorney’s Office from retrying or resentencing

him. The Magistrate Judge issued a Report and Recommendation (R&R), recommending

that the case be dismissed for lack of jurisdiction as a second or successive habeas

petition. The Magistrate Judge found that Pendleton’s complaint should properly be

construed as a habeas petition, “[s]ince the relief that the pleading seeks is a release from

confinement and a ban on being prosecuted.” Dkt # 4, at 3. Since Pendleton has filed

multiple habeas petitions, Pendleton was required to gain authorization from this Court

before filing a successive petition. See 28 U.S.C. § 2244(b)(3)(A). As he did not obtain

such authorization, the Magistrate Judge concluded that the District court lacked

jurisdiction. See Burton v. Stewart, 549 U.S. 147, 153 (2007); Robinson v. Johnson, 313

F.3d 128, 139–40 (3d Cir. 2002). Pendleton then submitted a second motion seeking an

immediate preliminary injunction. On March 1, 2018, the Magistrate Judge issued an

order denying Pendleton’s motion. On March 13, 2018, Pendleton filed the present



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mandamus petition, requesting that the District Court be compelled to issue the requested

injunction.

       A writ of mandamus is a drastic remedy available only in extraordinary

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

2005). To obtain the writ, a petitioner must show 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) (alteration in original) (internal quotation

marks omitted). Notably, mandamus is not a substitute for an appeal; if a petitioner can

obtain relief by an ordinary appeal, a court will not issue the writ. See In re Ford Motor

Co., 110 F.3d 954, 957 (3d Cir. 1997), abrogated on other grounds, Mohawk Indus., Inc.

v. Carpenter, 558 U.S. 100 (2009); In re Briscoe, 448 F.3d 201, 212 (3d Cir. 2006).

       Pendleton has failed to show that he has no other adequate means to challenge the

denial of his motion for a preliminary injunction. Any claims of error regarding the

Magistrate Judge’s order can be set forth in an appeal to the District Court, and once the

District Court enters a final judgment Pendleton may appeal that as well if the result is

not in his favor. Mandamus is not a substitute for an appeal, so we will deny Pendleton’s

mandamus petition.




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