DLD-017                                                          NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 18-3175
                                      ____________

                           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 D.C. Civ. No. 2-18-cv-01171)
                        __________________________________

                        Submitted Pursuant to Fed. R. App. Pro. 21
                                    October 25, 2018

        Before: JORDAN, GREENAWAY, JR. and NYGAARD, Circuit Judges

                             (Opinion filed: January 10, 2019)
                                     ____________

                                       OPINION*
                                      ____________


PER CURIAM

       Petitioner Michael J. Pendleton petitions for a writ of mandamus. For the reasons

that follow, we will deny the petition.

       Pendleton, a state prisoner, was charged with criminal homicide in August, 1997,

when he was 14 years old after he and two co-defendants shot and killed someone while

attempting to rob him. After his counsel unsuccessfully tried to have the matter
transferred to juvenile court, Pendleton was convicted following a jury trial in the

Allegheny County Court of Common Pleas of second degree murder. He was sentenced

to a term of life imprisonment without the possibility of parole.

       Pendleton filed his first petition for writ of habeas corpus, 28 U.S.C. § 2254, in

June of 2002. The petition was dismissed as untimely filed, and we declined to issue a

certificate of appealability. See Pendleton v. Sobina, C.A. No. 03-4792 (3d Cir. June 7,

2004). Thereafter, Pendleton filed several habeas corpus petitions in the District Court,

which were transferred here for consideration as applications to file second or successive

habeas corpus petitions, see 28 U.S.C. § 2244(b). The applications all were denied.

Then, in Miller v. Alabama, 567 U.S. 460 (2012), the United States Supreme Court held

that a mandatory sentence of life without parole for those under the age of 18 at the time

of their crimes violates the Eighth Amendment’s prohibition against cruel and unusual

punishment. Pendleton applied again for leave to file a second or successive § 2254

petition and we granted the application, concluding that Miller stated a new rule of

constitutional law and that Pendleton had made a prima facie showing that Miller was

retroactive to cases on collateral review, see In re: Pendleton, 732 F.3d 280, 282-83 (3d

Cir. 2013).1

       On April 11, 2018, Pendleton was resentenced in the Court of Common Pleas of

Allegheny County to a term of imprisonment of 28 years to life. He was given credit for

time served from June 13, 1997 to April 10, 2018 (7,607 days). Pendleton has appealed


1
  The U.S. Supreme Court later held that Miller was retroactive to cases on collateral
review, see Montgomery v. Louisiana, 136 S. Ct. 718 (2016).
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the resentencing to the Pennsylvania Superior Court with the assistance of counsel, see

Commonwealth v. Pendleton, No. 958 WDA 2018. That state court appeal remains

pending. He has also filed a § 2254 petition in federal court, challenging his new

sentence, see Pendleton v. Commonwealth of Pennsylvania, D.C. Civ. No. 18-cv-00078.

His federal habeas corpus case is currently stayed while he exhausts his state court

remedies.

       On September 4, 2018, Pendleton submitted a pro se in forma pauperis complaint

in the United States District Court for the Western District of Pennsylvania. Pendleton

sought declaratory and injunctive relief against the District Attorney of Allegheny

County under 42 U.S.C. § 1983 and the Due Process Clause, contending that he is

incarcerated pursuant to conduct that is not actually criminal under the state criminal

code. Specifically, Pendleton asserted that the jury found him guilty only of conspiracy;

he argued that the felony murder statute, 18 Pa. Cons. Stat. Ann. § 2502(b), requires

more, namely, that a defendant be charged either as a principal or as an accomplice.

Pendleton was granted leave to proceed in forma pauperis, after which the Magistrate

Judge submitted a Report and Recommendation, recommending that the complaint be

dismissed without leave to amend. The Magistrate Judge reasoned that the complaint

sounded in habeas corpus, and not civil rights, see Preiser v. Rodriguez, 411 U.S. 475,

500 (1973), and that, even if Pendleton amended his complaint to state a claim for

damages, his claim was not ripe under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994),

because his felony murder conviction has not been invalidated. In an order entered on



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September 19, 2018, the District Court adopted the Report and Recommendation as the

opinion of the court and dismissed the complaint without leave to amend.

        On October 2, 2018, Pendleton filed a petition for writ of mandamus in this Court

pursuant to the 28 U.S.C. § 1651(a), seeking the same relief he sought in his 2018 federal

civil rights action: to enjoin the continued enforcement of an allegedly “non-existent

law.” Petition, at 6. Pendleton argues that the District Court abused its discretion by

adopting the Magistrate Judge’s Report and Recommendation and dismissing his § 1983

complaint. Petition, at 2, 4. He notes that his pending state court appeal is limited to the

resentencing issue and thus does not provide him a basis for contesting the validity of his

conviction, and he notes that the issue he seeks to raise was recently identified by the

Pennsylvania Supreme Court as “difficult,” Commonwealth v. Chambers, 188 A.3d 400,

409 (Pa. 2018) (having found that the Commonwealth failed to prove the existence of a

conspiracy beyond a reasonable doubt, “we must leave for another day the more difficult

question of whether criminal convictions can rest upon the theory of conspiratorial

liability, when such theory is not provided for expressly in our Crimes Code”). Petition,

at 3.

        We will deny the petition for writ of mandamus. We have the power to issue writs

of mandamus under the All Writs Act, which provides that “[t]he Supreme Court and all

courts established by Act of Congress may issue all writs necessary or appropriate in aid

of their respective jurisdictions and agreeable to the usages and principles of law.” 28

U.S.C. § 1651(a). See In re: Kensington International Ltd., 353 F.3d 211, 219 (3d Cir.

2003). A writ of mandamus should be issued only in extraordinary circumstances,

                                              4
however. See In re: Diet Drugs Products Liability Litigation, 418 F.3d 372, 378 (3d Cir.

2005). The petitioner must show that there is no alternative remedy or other adequate

means of relief, and that he has a clear and indisputable right to the relief sought. See

Kerr v. U.S. District Court, 426 U.S. 394, 403 (1976). Moreover, mandamus is not a

substitute for an appeal. Kensington International, 353 F.3d at 219. “If, in effect, an

appeal will lie, mandamus will not.” Id. Here, the proper means of challenging the

dismissal of the § 1983 suit was to file a notice of appeal.

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




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