                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-5-2007

In Re D'Amario
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1768




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Recommended Citation
"In Re D'Amario " (2007). 2007 Decisions. Paper 1004.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1004


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CLD-210                                                           NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                        NO. 07-1768
                                     ________________

                             IN RE: ARTHUR D'AMARIO III,

                                               Petitioner

                       ____________________________________

                      On a Petition for Writ of Mandamus from the
                United States District Court for the District of New Jersey
                       (Related to D.N.J. Crim. No. 06-cr-00112)
                     _____________________________________

                         Submitted Under Rule 21, Fed. R. App. P.
                                     April 26, 2007

            Before: RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES

                                   (Filed : June 5, 2007)
                                _______________________

                                        OPINION
                                _______________________

PER CURIAM

       Arthur D’Amario has filed a petition for a writ of mandamus in which he requests

that we compel the District Court to (1) restore his jail credit; (2) enforce his attorney-

client and doctor-patient privileges as well as his Miranda rights; (3) cease disseminating

privileged information; and (4) stay all pending cases. On March 26, 2007, D’Amario

was sentenced to eighty-four months in prison after being convicted of threatening to kill

a federal judge. The requests in his mandamus petition arise from this conviction as well
as his prior convictions for firearm possession and threatening to kill a federal judge.

       The writ of mandamus will issue only in extraordinary circumstances. See Sporck

v. Peil, 759 F.2d 312, 314 (3d Cir. 1985). As a precondition to the issuance of the writ,

the petitioner must establish that there is no alternative remedy or other adequate means

to obtain the desired relief, and the petitioner must demonstrate a clear and indisputable

right to the relief sought. Kerr v. United States District Court, 426 U.S. 394, 403 (1976).

A writ is not a substitute for an appeal; only if a direct appeal is unavailable will the court

determine whether a writ of mandamus will issue. See In Re Ford Motor Co., 110 F.3d

954, 957 (1997).

        D’Amario has not established that there are no alternative remedies for the relief

that he seeks. The proper vehicle for a challenge to the computation of a jail credit is a

petition filed pursuant to 28 U.S.C. § 2241.1 A mandamus petition may, in certain cases,

be an appropriate vehicle for challenging the disclosure of privileged information. Here,

however, the information has already been disclosed, and D’Amario can challenge the

admission of any privileged information on appeal or in a § 2255 motion. We note that

D’Amario has filed a notice of appeal from his recent conviction and sentence.

       D’Amario has also filed a motion to stay the publication of the District Court’s

March 26, 2007, opinion denying his motion for a new trial. He alleges that it contains



   1
     D’Amario challenged the jail credit at issue in a prior case. See e.g. D’Amario v.
Bailey, C.A. No. 00-2643 (3d Cir. July 30, 2001)(dismissing appeal of denial of § 2241
petition as moot).
                                               2
quotations of confidential and privileged information. D’Amario does not point to any

specific privileged information in the District Court’s opinion.2 To the extent that

D’Amario is referring to his letter to his former attorney upon which his prior conviction

for threatening to kill a federal judge was based, Op. at 10-11, we note that this letter has

already been quoted in a published opinion of this Court. See United States v. D’Amario,

350 F.3d 348, 352 (3d Cir. 2003).

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

D’Amario’s motion to stay the publication of the District Court’s opinion is denied.




   2
     The documents quoted in the District Court’s opinion are (1) documents D’Amario
filed with Judge Irenas, Op. at 2; (2) a “Notice of Intent to Injure” which D’Amario filed
in the District Court for the District of Rhode Island, Op. at 13-14; and (3) a letter to the
Rhode Island Attorney General’s office. Op. at 13-14. D’Amario does not explain why
these documents should be considered privileged or confidential.
                                           3
