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Edward McCusker v. , 697 F. App'x 129 ( 2017 )


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  • CLD-331                                                          NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-2375
___________
IN RE: EDWARD G. MCCUSKER,
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. 2-09-cr-00771-001)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
August 10, 2017
Before: SHWARTZ, RENDELL and FISHER, Circuit Judges
(Opinion filed: September 8, 2017)
_________
OPINION*
_________
PER CURIAM
Pro se petitioner Edward McCusker has filed a petition for a writ of mandamus
seeking the relief described below. We will deny the petition.
In 2011, Edward McCusker was convicted in the United Stated District Court for
the Eastern District of Pennsylvania of mail fraud, wire fraud, and related crimes and was
sentenced to 60 months of imprisonment. McCusker appealed but subsequently
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
withdrew his appeal. United States v. Edward McCusker, No. 14-1868 (order entered on
October 2, 2014). McCusker has on numerous occasions attempted to collaterally
challenge his convictions, claiming, inter alia, that his direct appeal counsel provided
ineffective assistance by withdrawing his appeal and proceeding with a motion under
    28 U.S.C. § 2255
     instead. McCusker filed three motions to vacate sentence pursuant to
    28 U.S.C. § 2255
    , all of which were denied by the District Court. This Court declined to
issue certificates of appealability to McCusker to appeal these denials. United States v.
Edward McCusker, No. 16-3242 (order entered on October 20, 2016); United States v.
Edward McCusker, No. 16-3928 (order entered on March 17, 2017). This Court also
denied his application to file a second or successive motion to vacate. In re: Edward
McCusker, No. 16-2152 (order entered on May 25, 2016).
McCusker now petitions this Court for a writ of mandamus. McCusker seeks to
have his direct appeal rights reinstated based on his direct appeal counsel’s alleged
misconduct. McCusker also seeks immediate release and an order directing the District
Court to rule on pending motions. McCusker has also filed a motion for bail pending
appeal.
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
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v. Perry,
    558 U.S. 183
    , 190 (2010) (per curiam) (internal quotation marks, alteration
omitted). Mandamus cannot be used as a substitute for an appeal. Madden v. Myers,
    102 F.3d 74
    , 77 (3d Cir. 1996). Moreover, a § 2255 motion filed in the sentencing court is
the presumptive means for a federal prisoner to challenge the validity of a conviction or
sentence. See Okereke v. United States,
    307 F.3d 117
    , 120 (3d Cir. 2002). McCusker
previously filed numerous § 2255 motions which the District Court denied. If McCusker
wishes to collaterally challenge his conviction or sentence by filing a second or
successive § 2255 motion, he must do so by complying with the gatekeeping
requirements prescribed by
    28 U.S.C. § 2244
     and § 2255(h). He may not use a
mandamus petition to evade these requirements. See 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).
To the extent McCusker requests that this Court direct the District Court to rule on
his Rule 60(b) motion or his summary judgment motion, McCusker has not demonstrated
a clear and indisputable right to relief. The District Court denied McCusker’s Rule 60(b)
motion, in which McCusker again argued that appellate counsel committed fraud, on
November 7, 2016. Although the District Court has not ruled on McCusker’s motion for
summary judgment, this motion is moot to the extent he requested that the District Court
act on his Rule 60(b) motion. To the extent McCusker again requested relief based on
appellate counsel’s alleged misconduct, the District Court has already denied relief on
this claim multiple times. Moreover, at the time McCusker petitioned for mandamus
3
relief, his motion for summary judgment had only been pending for two months. The
District Court has recently ruled on McCusker’s third § 2255 motion and has been
diligently disposing of McCusker’s numerous filings. There is nothing in the record to
demonstrate that the District Court has failed to exercise its jurisdiction. See Madden,
    102 F.3d at 79
     (“[A]n appellate court may issue a writ of mandamus on the ground that
undue delay is tantamount to a failure to exercise jurisdiction[.]”). Accordingly, we will
deny McCusker’s mandamus petition. McCusker’s motions to add exhibits to his
mandamus petition are granted and his motion for bail pending appeal is denied.
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