                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-4-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5224




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Recommended Citation
"In Re: D'Amario " (2006). 2006 Decisions. Paper 1791.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1791


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HPS-11     (December 2005)                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                       NO. 05-5224
                                    ________________

                           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 Civ. No. 04-cv-02221)
                     _____________________________________

                    Submitted Under Rule 21, Fed. R. App. Pro.
                               December 16, 2005
      Before: CHIEF JUDGE SCIRICA, WEIS and GARTH, CIRCUIT JUDGES
                              (Filed: January 4, 2006)
                          ________________________

                                       OPINION
                               _______________________

PER CURIAM.

              Petitioner Arthur D’Amario, III asks that we issue a writ of mandamus

compelling the United States District Court for the District of New Jersey to “1)

immediately release petitioner from his invalid sentence; and 2) recuse [the district judge]

from further participation” in D’Amario’s motion to vacate, set aside, or modify his

sentence under 28 U.S.C. § 2255. D’Amario has since supplemented his petition with a

motion to stay his sentence and a motion to reinstate his right to direct appeal. Because


                                             1
D’Amario has other adequate means of obtaining his desired relief, we will deny him

relief.1

              Mandamus is a drastic remedy available only in the most extraordinary of

situations in response to an act amounting to a judicial usurpation of power. In re

Nwanze, 242 F.3d 521, 524 (3d Cir. 2001). A petitioner must show that he has a clear

and indisputable right to issuance of the writ, and it will issue only when the party

seeking the writ can show that he has no other adequate means to obtain the relief

requested. In re Flat Glass Antitrust Litigation, 288 F.3d 83, 91 (3d Cir. 2002).

              A § 2255 motion is the presumptive means for a federal prisoner to

challenge his conviction or sentence. Okereke v. United States, 307 F.3d 117, 120 (3d

Cir. 2002). D’Amario’s mandamus petition directly challenges his conviction and

sentence and thus should be brought under § 2255. His motion to stay his sentence as

well as the motion to reinstate his direct appeal also raise claims that sound in habeas,

which should be brought in a § 2255 motion. Further, since the district court has already

ruled on D’Amario’s § 2255 motion, his request for the judge’s recusal is moot. Because

D’Amario fails to show that there are no other adequate remedies to obtain his requested

relief, his petition and pending motions are denied.




   1
    On December 7, 2005, during the pendency of his current petition, the district court
entered an order denying D’Amario’s § 2255 motion. Thus, to the extent that his petition
requests that the district court rule on his § 2255 motion, it is dismissed as moot.
