                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-23-2008

In re: Frederick Si
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2204




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Recommended Citation
"In re: Frederick Si " (2008). 2008 Decisions. Paper 983.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/983


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HLD-126                                                            NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 08-2204
                                       ___________

                          IN RE: FREDERICK C. SISNEROS,
                                                    Petitioner
                       ____________________________________

                      On a Petition for Writ of Mandamus from the
        United States District Court for the Eastern District of Pennsylvania
                       (Related to E.D. Pa. Civ. No. 07-cv-04294)
                      ____________________________________

                      Submitted Pursuant to Rule 21, Fed. R. App. P.
                                     May 30, 2008

        Before: SCIRICA, Chief Judge, ALDISERT and GARTH, Circuit Judges

                                   (Filed: June 23, 2008)
                                         _________

                               OPINION OF THE COURT
                                     _________

PER CURIAM.

       Frederick C. Sisneros, a prisoner at the State Correctional Institution at Smithfield

in Huntingdon, Pennsylvania, has filed a petition for a writ of mandamus seeking to

compel the recusal of a district judge. For the following reasons, we will deny the

petition.

       In 2004, Sisneros filed a pro se petition for a writ of habeas corpus under 28

U.S.C. § 2254 in the United States District Court for the Eastern District of Pennsylvania.
The case was assigned to District Judge Lawrence F. Stengel, who issued an order on

November 17, 2004, dismissing the petition because it raised claims that were adjudicated

in a prior habeas proceeding. On October 15, 2007, Sisneros filed a motion to vacate that

judgment under F ED. R. C IV. P. 60(b). He argued in the motion that the judgment should

be vacated because Judge Stengel had previously presided over aspects of Sisneros’

criminal case while serving as a judge on the Court of Common Pleas of Lancaster

County. The motion was submitted with a copy of an order of the Court of Common

Pleas of Lancaster County issued on November 4, 1994, and signed by Judge Stengel,

directing the Commonwealth of Pennsylvania to show cause as to why various criminal

charges filed against Sisneros should not be dismissed with prejudice. On February 1,

2008, Sisneros filed a motion for recusal under 28 U.S.C. § 455(a), arguing that Judge

Stengel’s impartiality in adjudicating the Rule 60(b) motion might reasonably be

questioned because of his prior participation in state court criminal proceedings involving

Sisneros. The District Court has not yet ruled on the Rule 60(b) motion or the recusal

motion.

       On April 30, 2008, Sisneros filed in this Court a petition for a writ of mandamus

seeking the disqualification of Judge Stengel in the pending Rule 60(b) proceedings.

Sisneros argues in the mandamus petition that he is clearly entitled to such relief under 28

U.S.C. § 455(a), and Clemmons v. Wolfe, 377 F.3d 322 (3d Cir. 2004), where we

announced a supervisory rule requiring that “each federal district court judge in this



                                             2
circuit recuse himself or herself from participating in a 28 U.S.C. § 2254 habeas corpus

petition of a defendant raising any issue concerning the trial or conviction over which that

judge presided in his or her former capacity as a state court judge.” Clemmons, 377 F.3d

at 328.

          A mandamus petition is a proper means of challenging a district judge’s refusal to

recuse himself or herself pursuant to 28 U.S.C. § 455. See In re Sch. Asbestos Litig., 977

F.2d 764, 774-75 (3d Cir. 1992). Furthermore, we may entertain such a petition even

before a final judgment has been entered in the case, because “[i]nterlocutory review of

disqualification issues on petitions for mandamus is both necessary and appropriate to

ensure that judges do not adjudicate cases that they have no statutory power to hear.” Id.

at 778. Given that a writ of mandamus is an extraordinary remedy that is only available

where a litigant has no other adequate means of obtaining the desired relief, we have

recognized that it would not be appropriate to issue a writ of mandamus compelling the

disqualification of a district judge if a motion for recusal is pending in the district court.

See In re Kensington Intern., 353 F.3d 211, 223-24 (3d Cir. 2003). Because Judge

Stengel has not yet ruled on the motion for recusal that Sisneros filed on February 1,

2008, we conclude that he has not demonstrated that mandamus relief is warranted. We

offer no opinion as to the merits of the recusal claim.

          For the foregoing reasons, we will deny the mandamus petition, and we will do so

without prejudice.



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