BLD-230                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 10-2542
                                       ___________

                              IN RE: ROBERT B. BURKE,

                                                 Petitioner
                       ____________________________________

                      On a Petition for Writ of Mandamus from the
           United States District Court for the Eastern District of Pennsylvania
                      (Related to E.D. Pa. Crim. No. 92-cr-00268)
                      ____________________________________

                      Submitted Pursuant to Rule 21, Fed. R. App. P.
                                     June 24, 2010

           Before: RENDELL, CHAGARES and VANASKIE, Circuit Judges

                             (Opinion filed: August 5, 2010 )
                                       _________

                                        OPINION
                                        _________
PER CURIAM

       Robert Burke, a federal prisoner proceeding pro se, seeks a writ of mandamus

compelling Judge William H. Yohn, Jr., to recuse himself from any future proceedings.

For the reasons that follow, we will deny the petition.

       In 1993, Burke was convicted of, inter alia, murdering a federal witness. He

challenged his conviction through a direct appeal, a motion under 28 U.S.C. § 2255 and

subsequent appeal, and several other actions in this Court and the District Court, all of
which were unsuccessful. Recently, Burke filed in the District Court a motion under 28

U.S.C. §§ 455(a) and (b), seeking Judge Yohn’s recusal from any matter in which Burke

will be a party. The District Court denied the motion, reasoning that despite his

allegations of bias, Burke failed to demonstrate any actions, other than adverse rulings, to

support his claim. The District Court also noted that the motion was untimely, as it was

filed more than a year after this Court dismissed Burke’s appeal of the denial of his

§ 2255 motion, and that his motion was moot, as he has no proceedings pending in the

District Court. Burke then filed a petition for writ of mandamus.

       In his mandamus petition, Burke repeats his claim that Judge Yohn is biased

against him and should be compelled to recuse himself from any future proceedings in

which Burke will be a party. He also appears to challenge the denial of his recusal

motion, as well as the denial of various other motions related to the denial of his § 2255

motion.

       As a general rule, a mandamus petition will not be granted unless it is necessary

“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.” Roche v. Evaporated Milk Ass’n,

, 26 (1943). Typically, mandamus is not available if there are other remedies,

such as appeal. See Helstoski v. Meanor, 

, 505-08 (1979). As the rulings

concerning Burke’s § 2255 motion could have been challenged on appeal, mandamus is

not an appropriate avenue for relief.



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       Mandamus may, however, be used to challenge a district judge’s denial of a

recusal motion pursuant to 28 U.S.C. § 455. See In re: Kensington Int’l Ltd., 

, 300-01 (3d Cir. 2004). In addressing such a petition, we review the District Court’s

ruling for abuse of discretion. See 

“The test for recusal under § 455(a) is

whether a reasonable person, with knowledge of all the facts, would conclude that the

judge’s impartiality might reasonably be questioned.” 

basis Burke has

provided, both for his motion and his mandamus petition, is a series of rulings which

were adverse to him; as Judge Yohn explained in denying the motion, that is insufficient

to meet the standard for recusal under § 455. See Liteky v. United States, 

,

555 (1994). Accordingly, Judge Yohn did not abuse his discretion in denying the motion

and we perceive no basis for granting Burke’s petition.




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