In Re: Brian Tyson ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
8-22-2005
In Re: Brian Tyson
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3529
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Recommended Citation
"In Re: Brian Tyson " (2005). 2005 Decisions. Paper 667.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/667
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HPS-123 (July 2005) NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-3529
________________
IN RE: BRIAN TYSON,
Petitioner.
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Eastern District of Pennsylvania
(Related to Civ. No. 04-cv-01173)
_____________________________________
Submitted Under Rule 21, Fed. R. App. Pro.
July 29, 2005
BEFORE: CHIEF JUDGE SCIRICA, WEIS and GARTH, CIRCUIT JUDGES
(Filed: August 22, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Brian Tyson petitions for a writ of mandamus directing the Magistrate
Judge to issue a report and recommendation based on the claims he raised in his habeas
corpus petition. For the reasons that follow, we will deny the petition.
Tyson is a Pennsylvania inmate serving a sentence for third degree murder.
On direct appeal, Tyson raised several claims of ineffective assistance of counsel. While
Tyson’s direct appeal was pending, the Pennsylvania Supreme Court decided
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Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), holding for the first time that claims
of ineffective assistance of counsel should be raised in collateral proceedings rather than
on direct appeal. Id. at 738. Relying on Grant, the Superior Court affirmed Tyson’s
conviction but dismissed his claims of ineffective assistance without prejudice to his
raising them on collateral review. The Pennsylvania Supreme Court subsequently denied
Tyson’s petition for allowance of appeal.
While his petition for allowance of appeal was pending before the
Pennsylvania Supreme Court, Tyson filed a habeas corpus petition in the District Court.
In his habeas petition, he alleged that the Superior Court’s application of Grant
constitutes an ex post facto and due process violation. The Magistrate Judge to whom the
habeas petition was referred concluded that Tyson has not exhausted state court remedies
“with respect to his ineffectiveness claims,” and recommended dismissing the habeas
petition without prejudice. The District Court adopted the Magistrate Judge’s report and
recommendation, dismissed the habeas petition without prejudice, and declined to issue a
certificate of appealability. Tyson filed a notice of appeal; his request for a certificate of
appealability is pending in this Court. (Tyson v. Meyers, C.A. No. 05-2601.)
In his mandamus petition, Tyson argues that the Magistrate Judge
misconstrued the claims he presented in his habeas petition. He asserts that he is entitled
to a report and recommendation based on the claims he actually raised, not on the
Magistrate Judge’s recharacterization of his claims. Accordingly, he asks us to order the
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Magistrate Judge to issue such a report and recommendation.
We will deny Tyson’s mandamus petition because a writ of mandamus
should not issue where relief may be obtained through an ordinary appeal. See
Hahnemann University Hosp. v. Edgar, 74 F.3d 456, 461 (3d Cir. 1996); Oracare DPO,
Inc. v. Merin, 972 F.2d 519, 523 (3d Cir. 1992). Tyson has pursued an appeal, which is
the proper procedure for challenging the District Court’s dismissal of his habeas petition,
including the Magistrate Judge’s construction of his claims.
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