In Re D'Amario , 247 F. App'x 327 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
6-6-2007
In Re D'Amario
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2340
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Recommended Citation
"In Re D'Amario " (2007). 2007 Decisions. Paper 993.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/993
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CLD-235 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 07-2340
________________
IN RE: ARTHUR D'AMARIO,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the District of New Jersey
(Related to D.N.J. Crim. No. 01-cr-00346)
_____________________________________
Submitted Under Rule 21, Fed. R. App. P.
May 17, 2007
Before: RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES
(Filed: June 6, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Arthur D’Amario has filed a petition for a writ of mandamus in which he requests
that this Court order the District Court to re-enter its judgment against him in a criminal
case. D’Amario asks for this relief in order to file another appeal. He alleges that he
withdrew the appeal of his conviction and sentence docketed at C.A. No. 02-2371
because he was denied new counsel on appeal. However, D’Amario did not withdraw the
appeal at C.A. No. 02-2371.1 D’Amario withdrew the appeal of his conviction and
sentence which was docketed at C.A. No. 02-3011.
The writ of mandamus will issue only in extraordinary circumstances. See Sporck
v. Peil, 759 F.2d 312, 314 (3d Cir. 1985). As a precondition to the issuance of the writ,
the petitioner must establish that there is no alternative remedy or other adequate means
to obtain the desired relief, and the petitioner must demonstrate a clear and indisputable
right to the relief sought. Kerr v. United States District Court, 426 U.S. 394, 403 (1976).
A writ is not a substitute for an appeal; only if a direct appeal is unavailable will the court
determine whether a writ of mandamus will issue. See In Re Ford Motor Co., 110 F.3d
954, 957 (3d Cir. 1997). In this case, a direct appeal was available to D’Amario. By
order entered October 8, 2002, the Clerk warned D’Amario that if he chose to withdraw
his appeal, he would be giving up his constitutional right to have the District Court’s
order reviewed. D’Amario chose to withdraw his appeal. D’Amario cannot show that he
has a clear and indisputable right to re-entry of the criminal judgment and a new appeal.
Accordingly, we will deny the petition for a writ of mandamus.
1
In that case, the government appealed the downward departure the District Court
gave D’Amario at sentencing. We vacated the sentence and remanded the matter for re-
sentencing. See United States v. D’Amario, 350 F.3d 348 (3d Cir. 2003).
2