Verburg v. Bureau of Prisons Staff

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT March 6, 2015
Elisabeth A. Shumaker
Clerk of Court
MICHAEL T. VERBURG,
Petitioner – Appellant,
v. No. 14-3268
(D.C. No. 5:14-CV-03204-RDR)
BUREAU OF PRISONS STAFF; (D. Kan.)
BUREAU OF PRISONS REGIONAL
OFFICE,
Respondents - Appellees.
ORDER AND JUDGMENT*
Before MATHESON, O’BRIEN, and PHILLIPS, Circuit Judges.
Michael T. Verburg, a prisoner at the Federal Prison Camp in Yankton, South
Dakota and acting pro se,1 appeals from the U.S. District Court for the District of
Kansas’s denial of his petition for a writ of mandamus. Mr. Verburg had asked the court
to order the Bureau of Prisons staff in Kansas City, Kansas to ask the U.S. District Court
*After examining Appellant=s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Because Mr. Verburg is proceeding pro se, we construe his filings liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v. Davis, 596 F.3d 1198,
1201 n.2 (10th Cir. 2010).
for the District of South Carolina to correct his judgment of conviction for mail fraud
because it was based on fabricated evidence. The federal court in South Carolina had
previously denied relief under 28 U.S.C. § 2255. Verburg v. United States, Cr. No.
5:07-45, 2011 WL 2036343 (D.S.C. May 24, 2011). We have jurisdiction under 28
U.S.C. § 1291.
On appeal, Mr. Verburg fails to address whether the district court erred in denying
his petition. He instead alleges various defects in the proceedings leading to his
judgment of conviction in the South Carolina federal court.
The federal court in Kansas correctly dismissed the writ of mandamus. Mr.
Verburg had an adequate alternative means to challenge his conviction through direct
appeal or his § 2255 motion. “To ensure that mandamus remains an extraordinary
remedy, petitioners must show that they lack adequate alternative means to obtain the
relief they seek.” Mallard v. U.S. Dist. Ct. for S.D. Ia., 490 U.S. 296, 309 (1989)
(quotations and citations omitted); accord Cheney v. U.S. Dist. Ct. for D.C., 542 U.S.
367, 380-81 (2004).
We therefore affirm. We deny Mr. Verburg’s request to proceed in forma
pauperis. Mr. Verburg's motion to compel discovery is denied.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
2