BLD-197                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 12-2047
                                       ___________

                                IN RE: BRIAN TYSON,

                                     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. 2-06-cv-00290)
                      ____________________________________

                     Submitted Pursuant to Rule 21, Fed. R. App. P.
                                     June 7, 2012

              Before: SCIRICA, SMITH and CHAGARES, Circuit Judges

                              (Opinion filed: June 27, 2012)
                                       _________

                                        OPINION
                                        _________

PER CURIAM

       Brian Tyson petitions for a writ of mandamus directing the Magistrate Judge to

issue another report and recommendation based on the claims he raised in his habeas

corpus petition. For the reasons that follow, we will deny the petition.

       In 2000, a Pennsylvania jury found Tyson guilty of third degree murder and

possession of an instrument of crime. The Pennsylvania Superior Court affirmed, and
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the Pennsylvania Supreme Court denied allocatur in 2004. Tyson unsuccessfully sought

relief under the Pennsylvania Post Conviction Relief Act.

   In 2006, Tyson filed a habeas petition pursuant to 28 U.S.C. § 2254 in District Court,

which dismissed the petition as an improper second or successive habeas petition. Tyson

appealed, and on September 15, 2009, we reversed and remanded for further

proceedings.

       During the course of those proceedings, Tyson filed several different habeas

petitions and multiple amendments. The Magistrate Judge treated the habeas petition

filed on March 6, 2009, as the operative petition. On February 28, 2012, the Magistrate

Judge recommended dismissing the habeas petition with prejudice and without an

evidentiary hearing. Tyson then filed a “motion to dismiss, moot, or invalidate” the

report and recommendation as well as preliminary objections. Pursuant to two motions

for extensions of time filed by Tyson, the District Court directed him to file objections to

the Magistrate Judge’s report and recommendation by July 12, 2012, and to inform the

court by that date as to whether he needs additional time to respond to the report and

recommendation. On April 19, 2012, Tyson filed this petition for a writ of mandamus.

       In his mandamus petition, Tyson argues that the Magistrate Judge misconstrued

the claims he presented in his habeas petition. He asserts that he is entitled to a report

and recommendation based on the claims he actually raised, rather than the present report

based on what he views as a mischaracterization of his claims. Accordingly, he asks us

to order the Magistrate Judge to issue such a report and recommendation.
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  Mandamus is an appropriate remedy only in extraordinary situations. Madden v.

Myers, 102 F.3d 74, 79 (3d Cir. 1996). A party seeking mandamus must show that he

has “no other adequate means to attain the relief he desires” and that his right to the writ

is “clear and indisputable.” Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 426 U.S. 394, 403

(1976) (citations omitted). A writ of mandamus should not issue where relief may be

obtained through an ordinary appeal. In re Chambers Dev. Co., Inc., 148 F.3d 214, 223

(3d Cir. 1998).

       Here, the District Court has yet to consider the report and recommendation of the

Magistrate Judge. Tyson can still file objections to the report and recommendation,

which is the proper procedure for challenging the Magistrate Judge’s construction of his

claims. Accordingly, we will deny Tyson’s mandamus petition.




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