HLD-041 (November 2010)                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-4237
                                      ___________

                            IN RE: DAVID BERNARD,
                                                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. Crim. No. 04-cr-00580)
                      ____________________________________

                   Submitted Pursuant to Rule 21, Fed. R. App. P.
                               November 30, 2010
          Before: McKEE, Chief Judge, ALDISERT and WEIS, Circuit Judges
                         (Opinion filed: March 11, 2011)
                                    _________

                                       OPINION
                                       _________

PER CURIAM.

             David Bernard has filed a petition for a writ of mandamus in which he

claims that his sentence imposed by the United States District Court for the Eastern

District of Pennsylvania is “illegal” because he was sentenced by a “non-Article III

judge.”

             Bernard pled guilty to a four-count indictment charging him with, inter alia,

conspiracy to commit bank fraud. The Honorable Petrese B. Tucker, a District Judge in

the Eastern District, sentenced Bernard in November 2005 to a term of sixty-three months
in prison, three years of supervised release, and restitution of $601,231.84. This Court

affirmed. United States v. Bernard, 214 Fed. App’x 182 (3d Cir. 2007). The District

Court thereafter denied Bernard’s motion under 28 U.S.C. § 2255, rejecting a claim that

the court lacked subject-matter jurisdiction over the criminal case. This Court denied

Bernard’s request for a certificate of appealability in January 2008.

                 Bernard now seeks a writ of mandamus on the ground that he is entitled to

be re-sentenced by “an Article III judge,” a contention premised upon the wholly

unsupported assertion that Judge Tucker “took a Form 61 Commissioners Oath of

Office,” thereby rendering her “an employee of the Department of Justice.” Mandamus

Petition at 5.

                 We may issue writs of mandamus “in aid of” our jurisdiction. 28 U.S.C. §

1651(a); see United States v. Christian, 660 F.2d 892, 894 (3d Cir. 1981) (explaining that

“we must identify a jurisdiction that the issuance of the writ might assist”). Because

Bernard’s criminal proceedings are final and completed, his mandamus request fails at

the threshold because it is not sought in aid of our appellate jurisdiction. In any event,

the premise of Bernard’s claim (i.e., that Judge Tucker somehow lacked authority to

impose sentence) is patently frivolous on its face, leaving Bernard with no claim to the

drastic and extraordinary remedy of mandamus. See Cheney v. United States Dist. Court,

542 U.S. 367, 380 (2004). Accordingly, we will deny the mandamus petition.




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