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Precedential or Non-Precedential: Non-Precedential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.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1112


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HPS–87     (April, 2005)                                  NOT PRECEDENTIAL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 

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., 

, 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.’” 

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, 

, 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.