In Re: Barry ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
5-31-2005
In Re: Barry
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4381
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Recommended Citation
"In Re: Barry " (2005). 2005 Decisions. Paper 1112.
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HPS–87 (April, 2005) NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-4381
_______________
IN RE: ARTHUR BARRY,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
District Court for the District of the Virgin Islands
(Related to Civil App. No. 04-cv-00054)
_____________________________________
Submitted Under Rule 21, Fed. R. App. P.
April 29, 2005
BEFORE: SCIRICA Chief Judge, WEIS and GARTH, Circuit Judges
Filed May 31, 2005
_______________________
OPINION
_______________________
PER CURIAM.
After a jury trial in the Territorial Court for the U.S. Virgin Islands, Arthur
O. Barry, Jr. was convicted of involuntary manslaughter and sentenced to a five-year term
of imprisonment. He also was found not guilty by reason of insanity on charges of
attempted first degree murder, and first and second degree arson, and was committed until
he regained a sound capacity for judgment pursuant to V.I. Code Title 5, § 3637(a) & (b).
Barry filed a petition for writ of habeas corpus in the Territorial Court.
First, the Territorial Court denied the petition. Barry moved for reconsideration, and the
Territorial Court reconsidered its decision and granted reconsideration. See Barry v.
Phillips, Civ. No. 625/03 (V.I. Terr. Ct. March 9, 2004) (Appendix at 145-51). The
Territorial Court also ordered the government to show cause why the relief Barry
requested should not be granted. See id. Then, on March 12, 2004, after a hearing, the
Territorial Court dismissed Barry’s petition for writ of habeas corpus because Barry had
an adequate remedy at law in the underlying criminal proceedings. See Transcript of
March 12, 2004 hearing (Appendix at 166-72).
Barry appealed from the March 12, 2004 order dismissing his petition to the
District Court for the Virgin Islands. On June 3, 2004, he moved for immediate release
from custody pending appeal pursuant to Federal Rule of Appellate Procedure 23. In
November, he filed a petition for writ of mandamus in this Court, seeking an order to
compel the District Court to rule on his motion for immediate release.
Barry’s mandamus proceeding was dismissed for failure to prosecute on
December 20, 2004, because he did not pay the fees or file a complete application to
proceed in forma pauperis. He then filed a “motion to reopen [his] case for expedited
review,” as well as a complete application to proceed in forma pauperis, which has been
granted. Barry has timely shown good cause to reopen his case, so his motion to reopen
is granted. However, his petition for writ of mandamus will be denied.
Mandamus is an extraordinary remedy. See Kerr v. U.S. Dist. Ct., 426 U.S.
394, 402 (1976). Within the discretion of the issuing court, mandamus traditionally may
be “used ... only ‘to confine an inferior court to a lawful exercise of its prescribed
jurisdiction or to compel it to exercise its authority when it is its duty to do so.’” Id.(citations omitted). A petitioner must show “‘no other adequate means to attain the
desired relief, and ... a right to the writ [that] is clear and indisputable.’” See In re
Patenaude, 210 F.3d 135, 141 (3d Cir. 2000) (citation omitted).
Barry argues that the District Court has unduly delayed in deciding his
motion for immediate release. Although an appellate court may issue a writ of mandamus
when an undue delay in adjudication can be considered a failure to exercise jurisdiction
that rises to the level of a due process violation, see Madden v. Myers,102 F.3d 74, 79 (3d
Cir. 1996), a writ of mandamus is not appropriate here. Barry’s motion for immediate
release from custody was ancillary to his appeal from the Territorial Court’s order
dismissing his petition. On December 13, 2004, the District Court considered his appeal
and determined that it could not reach the merits at that time because Barry had not
obtained a certificate of probable cause for appeal. The District Court remanded the case
to the Territorial Court for a determination whether a certificate of probable cause should
issue. The delay in adjudication of Barry’s motion is not a failure to exercise prescribed
jurisdiction. The delay is merely a consequence of the District Court’s compliance with
the Virgin Islands Rules of Appellate Procedure, see V.I.R.A.P. 14 (2005).
Accordingly, the Petition for Mandamus will be denied.