CLD-263                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-1293
                                       ___________

                           IN RE: ERNEST DAVID KEYS,
                                                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. 2-05-cr-00617)
                      ____________________________________

                    Submitted Pursuant to Rule 21, Fed. R. App. P.
                                   May 25, 2017
             Before: SHWARTZ, NYGAARD and FISHER, Circuit Judges

                              (Opinion filed: May 31, 2017)
                                       _________

                                        OPINION*
                                        _________

PER CURIAM

       Pro se petitioner Ernest David Keys seeks a writ of mandamus to compel the

United States District Court for the Eastern District of Pennsylvania to grant him

sentencing relief regarding his criminal conviction. Keys also has filed a motion for an

emergency hearing relating to his claims for sentencing relief. For the reasons that

follow, we will deny the mandamus petition and related motion.


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
      Keys’s conviction resulted from his 2007 guilty plea to conspiracy to interfere

with interstate commerce by robbery and to interference with interstate commerce by

robbery. The District Court imposed a 151-month term of imprisonment, sentencing

Keys as a career offender—i.e., as having been convicted of one or more “crimes of

violence” as defined in the “residual clause” of U.S.S.G. § 4B1.2(a)(2). Keys waived his

rights to appellate and collateral review; on direct appeal, we granted the Government’s

motion to enforce the appellate waiver.

      In 2013, Keys filed a pro se motion to vacate his sentence pursuant to 28 U.S.C.

§ 2255. The District Court denied the motion in May 2015. In July 2015, Keys filed a

motion to amend or supplement his prior § 2255 motion based on Johnson v. United

States, 135 S. Ct. 2551 (2015), in which the Supreme Court held that the definition of

“violent felony” in the residual clause of the Armed Career Criminal Act (“ACCA”),

18 U.S.C. § 924(e)(2)(B), is void for vagueness as a matter of due process. The District

Court denied the motion on the merits. Keys filed a pro se appeal, docketed at C.A.

No. 15-3588. We retained jurisdiction, stayed the appeal, and remanded the matter for

the District Court to consider Keys’s correspondence as a motion to extend and reopen

the time to appeal under the Federal Rules of Appellate Procedure 4(a)(5) and 4(a)(6).

The District Court granted the motion under Rule 4(a)(6) and later appointed the Federal

Community Defender’s Office to litigate Keys’s Johnson claim.

      In April 2016, appointed counsel filed an application for this Court’s authorization

to file a second or successive § 2255 motion to raise Keys’s claim that his § 4B1.2(a)(2)



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career offender sentence was unconstitutional in light of Johnson,1 recognizing the

prerequisite of authorization under 28 U.S.C. § 2244 to pursue a second § 2255 motion.

That matter was docketed at C.A. No. 16-2055. In light of the pending § 2244

application, counsel filed a motion for voluntary dismissal in Keys’s appeal at C.A.

No. 15-3588. Accordingly, in June 2016, the Clerk issued the requested voluntary

dismissal order.2 Pending the outcome of the § 2244 application, counsel filed a

protective § 2255 motion in the District Court, raising Keys’s Johnson claim.

       In February 2017, Keys filed this pro se mandamus petition; he was granted leave

to proceed in forma pauperis in April 2017. Among other things, he states that counsel

informed him that his case would not be decided until the Supreme Court issued its

decision in Beckles v. United States, S. Ct. No. 15-8544, but he believes that a stay

pending Beckles is unnecessary. Indeed, both this Court and the District Court entered

stay orders in the proceedings on Keys’s § 2244 application and his protective § 2255

motion. Keys argues that his case is distinguishable from Beckles on its facts. Thus, he

asks us to issue a writ of mandamus to compel the District Court to rule on the § 2255

motion filed by counsel.



1
  Keys asserts that the residual clause definition of “crime of violence” in § 4B1.2(a)(2) is
identical to the ACCA residual clause definition of “violent felony” that was invalidated
in Johnson, and that his sentence enhancement under § 4B1.2(a)(2) is similarly
unconstitutional.
2
  To the extent that Keys suggests in his filings in this matter that we currently retain
jurisdiction in his appeal at C.A. No. 15-3588, he is mistaken, as that matter remains
closed upon the Clerk’s order of voluntary dismissal.

                                              3
      At the time Keys submitted his mandamus petition to this Court, the protectively-

filed § 2255 motion was still pending before the District Court. However, the record

reflects that on March 22, 2017, counsel filed a motion to withdraw the § 2255 motion,

which the District Court granted later that same day, dismissing Keys’s § 2255 motion.

Because the District Court has reached a disposition of Keys’s § 2255 motion, Keys has

received the relief sought in his mandamus petition. Thus, we will dismiss the petition,

as it has become moot. See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99

(3d Cir. 1996).

      For similar reasons, we deny Keys’s motion for an emergency hearing, which

relates to his underlying § 2255 proceedings. In his motion, Keys contends that he is

entitled to a new sentencing hearing and a recall of the mandate in his § 2255 proceedings

in light of the Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243

(2016) (relating to ACCA sentencing). Keys filed similar motions based on Mathis in his

District Court proceedings. The District Court since has denied Keys’s motions, noting

that any amendment to his prior § 2255 motion based on Johnson would be futile in light

of the Supreme Court’s decision in Beckles,3 and that Keys’s new request for § 2255

relief would be an unauthorized second or successive § 2255 motion. As the District

Court has issued its rulings with respect to the underlying § 2255 proceedings, including

3
  The Supreme Court issued its decision in Beckles on March 6, 2017, after Keys filed
this mandamus petition. See Beckles v. United States, 137 S. Ct. 886 (2017). Beckles
was sentenced as a career offender under U.S.S.G. § 4B1.2(a)’s residual clause. The
Supreme Court rejected Beckles’s argument that § 4B1.2(a)’s residual clause was
unconstitutionally vague under Johnson, holding that the advisory Guidelines are not
subject to a due process vagueness challenge and that § 4B1.2(a)’s residual clause is not
void for vagueness. See Beckles, 137 S. Ct. at 897.
                                            4
Keys’s Mathis arguments, Keys’s request for an emergency hearing on the matter is now

moot. To the extent that Keys disagrees with the District Court’s rulings, mandamus

must not be used as a substitute for an appeal. See In re Kensington Int’l Ltd., 353 F.3d

211, 219 (3d Cir. 2003).

       Accordingly, we will dismiss the petition for a writ of mandamus. The motion for

an emergency hearing is denied.




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