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


3-13-2006

In Re: Alvin Conerly
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5292




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Recommended Citation
"In Re: Alvin Conerly " (2006). 2006 Decisions. Paper 1446.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1446


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APS-129
                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-5292
                                   ________________

                               IN RE: ALVIN CONERLY,

                                                 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. No. 96-cv-00039)
                     _____________________________________

                      Submitted Under Rule 21, Fed. R. App. Pro.
                                 February 16, 2006
             Before: SLOVITER, MCKEE AND FISHER, CIRCUIT JUDGES


                                  (Filed March 13, 2006)

                               _______________________

                                      OPINION
                               _______________________


PER CURIAM

       Pro se petitioner Alvin Conerly seeks a writ of mandamus to compel the United

States District Court for the District of New Jersey to reach a decision on a 28 U.S.C.

§ 2255 motion that asked whether the federal court had proper jurisdiction to try and

convict him in his 1981 trial. We will deny the petition.

       In April 2004, Conerly filed a third, successive motion pursuant to 28 U.S.C.
§ 2255. Conerly also filed a motion for leave to proceed in forma pauperis. On July 14,

2004, the District Court entered an order granting Conerly’s application to proceed in

forma pauperis on the condition that Conerly submit a certified copy of his trust fund

account statement, pursuant to 28 U.S.C. § 1915(a)(2), within 45 days of the order. On

October 8, 2004, the District Court entered an order withdrawing the § 2255 motion due

to Conerly’s failure to file the trust fund account statement within the required time

period. Conerly filed his petition for a writ of mandamus on November 28, 2005.

       The remedy of mandamus is reserved for the most extraordinary of circumstances.

DeMasi v. Weiss, 669 F.2d 114, 117 (3d Cir. 1982). In order to ensure that mandamus is

sparingly granted, a petitioner seeking a writ of mandamus must demonstrate that no

other adequate means are available to attain the desired relief and that the right to

issuance of the writ is “clear and indisputable.” Allied Chem. Corp. v. Daifon, Inc., 449

U.S. 33, 35 (1980).

       Conerly’s mandamus petition suggests he is unaware that the District Court

withdrew his § 2255 motion when he failed to submit a trust fund account statement. See

Mandamus Petition, 1 (stating that the motion “lays with the U.S. District Court”). As

noted, however, the District Court withdrew the motion in an order entered on October 8,

2004. We note that Conerly submitted an address change to the District Court at about

that same time; the District Court’s own docket indicates that the withdrawal order was

returned by the United States Postal Service as undeliverable. It may be understandable,

then, that Conerly believes his motion remains pending. In any event, for the reasons we

have detailed, nothing is currently pending before the District Court, and–contrary to
Conerly’s suggestion–it cannot be said that the District Court has improperly failed to

exercise any jurisdiction to entertain Conerly’s arguments.

       We make one final observation. The District Court’s insistence that Conerly

submit a trust fund account statement may have stemmed from an erroneous assumption

that § 1915(a)(2) applies in habeas and similar proceedings. It does not. See Madden v.

Myers, 102 F.3d 74, 77 (3d Cir. 1996). Regardless, even if the District Court need not

have required the submission of the account statement, it could not have reached the

merits of Conerly’s § 2255 motion. Because Conerly’s motion was not his first, he

needed to obtain this court’s certification before proceeding again in the District Court.

See § 2255 ¶ 8.

       Because Conerly’s § 2255 motion is no longer pending in the District Court, we

will deny the petition for a writ of mandamus. See Allied Chem. Corp., 449 U.S. at 35.
