In Re: Kitano

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-8-2005
In Re: Kitano
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4110
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Recommended Citation
"In Re: Kitano " (2005). 2005 Decisions. Paper 133.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/133
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DPS-385 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-4110
________________
IN RE: ALEXANDER BLANCO KITANO,
Petitioner
__________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Middle District of Pennsylvania
(Related to Civ. No. 05-cv-00153)
_____________________________________
Submitted Under Rule 21, Fed. R. App. Pro.
September 29, 2005
BEFORE: ROTH, BARRY AND SMITH, CIRCUIT JUDGES
(Filed: December 8, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Alexander Kitano, an inmate at USP-Lewisburg, asks that we issue a writ of
mandamus ordering the District Court to rule on his petition for a writ of habeas corpus
under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 1651(a), and will deny
the petition.
In 1987, Kitano pled guilty to the first-degree murder of a prison guard at a Guam
territorial prison. He was sentenced to life imprisonment with eligibility for parole in
fifteen years. The Guam Parole Board denied parole in 2002 and again in 2003. Kitano
eventually filed a petition for a writ of mandamus in the Guam Supreme Court, which has
yet to issue a ruling. Despite the ongoing proceedings in Guam, on January 24, 2005, he
filed a § 2254 petition in the District Court for the Middle District of Pennsylvania
seeking habeas relief for alleged procedural due process violations and the improper
imposition of a “public safety factor” prisoner classification. A response was filed on
March 30, 2005. Kitano responded on April 12. The District Court has not yet ruled on
the petition. On September 6, 2005, Kitano filed the instant request for mandamus relief
arguing that the District Court is unjustifiably delinquent in issuing a ruling.
Mandamus is a drastic remedy available only in the most extraordinary of
situations in response to an act amounting to a judicial usurpation of power. In re
Nwanze, 242 F.3d 521, 524 (3d Cir. 2001). To justify such a remedy, a petitioner must
show that he has (i) no other adequate means of obtaining the desired relief and (ii) a
clear and indisputable right to issuance of the writ. Id. (quoting Hahnemann Univ. Hosp.
v. Edgar, 74 F.3d 456, 461 (3d Cir. 1996)).
While some delays may be so prejudicial that they warrant mandamus relief, see
Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996); Johnson v. Rogers, 917 F.2d 1283,
1285 (10th Cir. 1990); Jones v. Shell, 572 F.2d 1278, 1280 (8th Cir. 1978), we do not
find the five-month delay at issue here to be so prejudicial that an issuance of the writ is
warranted. Accordingly, we will deny Kitano’s petition for a writ of mandamus.
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