In Re: Dennis Lee Sm ( 2009 )

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Precedential or Non-Precedential: Non-Precedential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NOT PRECEDENTIAL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.)
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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
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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.
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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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