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Kevino Graham v. ( 2022 )


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  • DLD-062                                                         NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-2944
___________
IN RE: KEVINO GRAHAM,
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. 2-14-cr-00623-001)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
January 13, 2022
Before: KRAUSE, MATEY and PHIPPS, Circuit Judges
(Opinion filed: January 26, 2022)
_________
OPINION *
_________
PER CURIAM
Kevino Graham has filed a petition for a writ of mandamus requesting that we
“compel” the District Judge overseeing Graham’s criminal and postconviction
proceedings “to answer” a question Graham claims he posed in a prior postconviction
motion. Pet. 1. For the following reasons, we will deny his petition.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
After a jury trial in the Eastern District of Pennsylvania, Graham was convicted of
sex trafficking by force and attempting to do the same. See
    18 U.S.C. §§ 1591
    , 1594.
The District Court denied two posttrial motions and sentenced Graham to 100 years’
imprisonment. Graham then filed a postconviction motion pursuant to
    28 U.S.C. § 2255
    ,
alleging among other things that counsel was ineffective for failing to object to jury
instructions that, according to Graham, misapplied section 1591. The District Court
denied that motion, and we declined to issue the certificate of appealability required to
obtain review. See United States v. Graham, No. 20-1631 (3d Cir. Oct. 23, 2020),
    2020 WL 9596841
    , cert. denied
    141 S. Ct. 2655
     (2021); see also
    28 U.S.C. § 2253
    (c).
Graham filed in the District Court another section 2255 motion, accompanied by a
“request to adjudicate” certain claims that he averred the District Court ignored in ruling
on his original section 2255 motion. See United States v. Graham, No. 2-14-cr-00623-
001, Dkt. Nos. 533, 535 (E.D. Pa. June 24, 2021). The District Court issued an order
explaining that it lacks jurisdiction until Graham seeks and receives our authorization to
file a second or successive motion. See
    id.
     at Dkt. No. 553 (Sept. 22, 2021); see also
    28 U.S.C. §§ 2244
    , 2255(h). Graham moved for reconsideration, which the District Court
denied. Graham then filed the instant mandamus petition, asserting that the jury
instructions given by the District Court were inconsistent with section 1591, alleging that
his counsel was ineffective for failing to object to those instructions, and asking that we
compel the District Court to rule on this claim.
2
A writ of mandamus is an extraordinary remedy. See Kerr v. U.S. Dist. Ct.,
    426 U.S. 394
    , 402 (1976); In re Diet Drugs Prods. Liab. Litig.,
    418 F.3d 372
    , 378 (3d Cir.
2005). To obtain mandamus relief, a petitioner must establish that “(1) no other adequate
means exist to attain the relief he desires, (2) his right to issuance of the writ is clear and
indisputable, and (3) the writ is appropriate under the circumstances.” Hollingsworth v.
Perry,
    558 U.S. 183
    , 190 (2010) (per curiam) (cleaned up). Mandamus cannot be used as
a substitute for an appeal. Madden v. Myers,
    102 F.3d 74
    , 77 (3d Cir. 1996).
To the extent that Graham now asks us to correct an alleged error in the District
Court’s order denying his original section 2255 motion, he should have brought this
argument in his application for a certificate of appealability in the prior proceeding. See
Graham, C.A.3 No. 20-1631.
To the extent that he asks us to compel the District Court to adjudicate a new
claim, he must comply with the gatekeeping requirements prescribed by
    28 U.S.C. § 2244
     and § 2255(h). He may not use a mandamus petition to evade them. 1 Cf. Massey v.
United States,
    581 F.3d 172
    , 174 (3d Cir. 2009) (per curiam); United States v. Baptiste,
    223 F.3d 188
    , 189–90 (3d Cir. 2000) (per curiam).
Accordingly, we will deny Graham’s petition for writ of mandamus.
1
We express no opinion as to whether Graham could meet these requirements were he to
file a proper application in the future.
3