                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-24-2009

In Re: Dennis Lee Sm
Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2823




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"In Re: Dennis Lee Sm " (2009). 2009 Decisions. Paper 1139.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1139


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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 09-2823
                                      ___________

                             IN RE: DENNIS L. SMITH,
                                                 Petitioner
                      ____________________________________

                      On a Petition for Writ of Mandamus from the
                 United States District Court for the District of Delaware
                                (Related to 09-cv-00383)
                      ____________________________________

                     Submitted Pursuant to Rule 21, Fed. R. App. P.
                                    June 23, 2009

            Before: CHAGARES, ALDISERT and GARTH, Circuit Judges

                              (Opinion filed June 24, 2009)
                                      _________

                                        OPINION
                                        _________

PER CURIAM

       On May 29, 2009, Dennis L. Smith filed a notice of removal in the United States

District Court for the District of Delaware seeking an order from the District Court

dismissing criminal charges brought against Smith in the State of Delaware Family Court,

case No. 0905000485. Smith claimed that he was framed by State Police Corporal

Hudson, who falsely arrested him on May 1, 2009, on a false report that Smith terrorized

his mother. He claimed there was an illegal plot to make him appear guilty. He alleged
that he was the victim of race-based discrimination. The matter was assigned to United

States District Judge Joseph J. Farnan, Jr., on June 3, 2009.

       On June 22, 2009, Smith filed this petition for a writ of mandamus. In Count I of

the petition, Smith seeks552 to recuse Judge Farnan from presiding over the notice of

removal action. He alleges that the District Judge has a conflict of interest and is biased

against him. He accuses the District Judge of alleged trickery and deception in a prior

unrelated civil case.

       Count II contains allegations against Commissioner Andrew K. Southmayd of the

Delaware Family Court in Sussex County. On June 8, 2009, Commissioner Southmayd

issued an order scheduling a trial for Friday, June 26, 2009, and stating that “this matter

will proceed to trial and will be stayed only if the [federal] District Court orders

otherwise.” See Mandamus Petition, Exhibit “A.” Smith claims that Commissioner

Southmayd has “no legal, lawful jurisdiction over my federal civil action [in the District

Court],” and therefore, the Family Court order issued on June 8, 2009, “and all deceitful

details thereon is illegal harassment and Terroristic Threatening to my Constitutional

Federal Civil Rights of Law/Constitutional Fourteenth (14 th ) Amendment.” (Mandamus

Petition, 5-6). He accuses Commissioner Southmayd of refusing to accept that the State

Police Probable Cause statement was racist, “unconstitutional and fraudulently written to

deceive . . . .” (Id. at 6). He claims that Commissioner Southmayd “illegally and

unconstitutionally compelled me [to] be present in his court room” for arraignment. (Id.)



                                              2
Smith avers that he never entered a plea and that he was harassed and illegally questioned

by Commissioner Southmayd, who allegedly intended to trick Smith into making a self-

incriminating statement. He claims that Commissioner Southmayd “is trying to use

Delaware Troop 4 State Police/CPL Jeffrey Hudson’s fraudulent document(s) at an illegal

and unconstitutional mock trial to make it appear [that] this racist officer Hudson did no

wrong[.] [T]his is a[n] illegal, unconstitutional and deceitful cover-up attempt, which is

totally unacceptable, as a matter of Equal Justice, under the law.” (Id. at 7). Smith states

that several federal statutes have been violated, including 42 U.S.C. §§ 1985(3), 1986,

1981(a) and 1983 and notes that he has referred the matter to the Justice Department for

federal prosecution under 18 U.S.C. §§ 241 and 242. It appears that Smith is asking us to

take over the criminal proceedings and to dismiss the charges forthwith based on the

“prima facie” evidence that he has presented with his mandamus petition. He points

specifically to the statement of his sister who has retracted a statement she made to the

State Police on the night of the occurrence.

       Mandamus is an appropriate remedy in extraordinary circumstances only. Kerr v.

United States District Court, 426 U.S. 394, 402 (1976); Sporck v. Peil, 759 F.2d 312, 314

(3d Cir. 1985). “[M]andamus must not be used as a mere substitute for appeal.”

Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1422 (3d Cir.

1991). A petitioner must ordinarily have no other means to obtain the desired relief, and

he must show a “clear and indisputable” right to issuance of the writ. In re School



                                               3
Asbestos Litig., 977 F.2d 764, 772 (3d Cir. 1992).

       Smith’s judicial bias and impropriety claims against District Judge Farnan are

4brought under 28 U.S.C. § 144. Claims of actual judicial bias pursuant to § 144 are not

appropriate for mandamus. Green v. Murphy, 259 F.2d 591, 594 (3d Cir. 1958) (en

banc). Treating his claim as one for judicial disqualification under 28 U.S.C. § 455(a),

which may be brought via mandamus, see Alexander v. Primerica Holdings, 10 F.3d 155,

163 (3d Cir. 1993), Smith has not shown a “clear and indisputable” right to issuance of

the writ. Here, Smith’s claim is based solely on the District Judge’s rulings in an

unrelated matter to which Smith was a party.1 See Liteky v. United States., 510 U.S. 540,

555 (1994) (“judicial rulings alone almost never constitute a valid basis for a bias or

partiality motion”). Most important, there is nothing in the present record indicating that

the District Judge is biased against Smith.

       As for his request for mandamus to prohibit further criminal proceedings in state

court and to dismiss the criminal charges against him, Smith cannot show that he has no

other means to obtain the desired relief. Smith’s petition to remove the proceedings to the

federal court seeks the same relief that he requests in this mandamus petition. The Notice

of Removal is pending disposition in the District Court and we have no reason to doubt

that the District Court will take appropriate action on it. Certainly Smith has not shown




   1
    We note that Smith filed a similar request for judicial disqualification of Judge
Farnan in Smith v. Meyer, C. A., No. 07-3999, which we denied.

                                              4
such an entitlement to relief that we would direct the District Court to grant it. In re

School Asbestos Litig., 977 F.2d at 772.

       Accordingly, we will deny Smith’s mandamus petition. Smith’s emergency

motion for a temporary restraining order is denied.




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