Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-30-2005

In Re: Mendez
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1472




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Recommended Citation
"In Re: Mendez " (2005). 2005 Decisions. Paper 933.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/933


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CPS-212                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-1472
                                   ________________

                             IN RE: RAPHAEL MENDEZ,

                                                Petitioner.
                      ____________________________________

                      On a Petition for Writ of Mandamus from the
                           District Court of the Virgin Islands
                       (Related to D. V.I. Civ. No. 04-cv-0108-G)
                      _____________________________________

                        Submitted Under Rule 21, Fed. R. App. P.
                                    April 21, 2005

             BEFORE: ALITO, McKEE and AMBRO, CIRCUIT JUDGES

                                 (Filed June 30, 2005 )
                              _______________________

                                      OPINION
                              _______________________
PER CURIAM

      Petitioner Raphael Mendez was charged in the District Court of the Virgin Islands

with assault, possession of an unlicensed firearm during a violent crime, and possession

by a felon of a firearm. Prior to trial, Mendez requested a psychological evaluation and

was found incompetent to stand trial. He was committed to FMC-Butner in North

Carolina for observation. Upon further review, he was indefinitely committed under 18

U.S.C. § 4246 by the District Court for the Eastern District of North Carolina. He
appealed the commitment to the Fourth Circuit, which affirmed. United States v.

Mendez, No. 91-7685, 

(4th Cir. July 9, 1992).

       Since then, Mendez has filed numerous appeals and other actions. Most recently,

this Court denied a writ of mandamus relating to two actions then pending in the Virgin

Islands Territorial and District Courts. See In re Mendez, No. 04-1147, 95 Fed. Appx.

463 (3d Cir. May 5, 2004) (table). One of the same actions is at issue in the current

petition. In 2003, Mendez filed a habeas petition in the Territorial Court, which delayed

in ruling on the petition. On August 5, 2004, Mendez filed a petition for a writ of

mandamus with the Virgin Islands District Court seeking an order directing the Territorial

Court to issue a decision. The District Court has not ruled on the petition. On February

14, 2005, Mendez filed a second petition for a writ of mandamus with this Court. He

complains of delay by the Territorial Court and the District Court in adjudicating his

cases. We will deny the petition.

       A writ of mandamus is an extraordinary remedy which should be invoked only in

extraordinary situations. See Kerr v. United States Dist. Ct., 

, 402 (1976).

Mendez must show that he has an indisputable right to the writ and that there exists no

other adequate remedy. See Haines v. Liggett Group Inc., 

, 89 (3d Cir. 1992).

It appears the Territorial Court recently dismissed Mendez’s habeas petition. Even if the




                                             2
action was not dismissed, Mendez has not shown he is entitled to the writ.1

       Delay is only relevant where the court at issue has jurisdiction in the first instance.

No matter how Mendez captioned his original habeas petition, the Territorial Court does

not have jurisdiction to grant Mendez habeas relief. Mendez was never convicted of a

criminal offense and therefore is not in custody. Nor are any criminal charges currently

pending. Although he may bring a § 2241 petition challenging his civil commitment, he

must file the petition in the district with jurisdiction over his place of confinement. See

Rumsfeld v. Padilla, __U.S.__, 

, 2724 (2004). Thus, only the Eastern

District of North Carolina has jurisdiction to consider a § 2241 petition.

       We reach a similar conclusion with respect to the alleged delay by the District

Court. First, the delay has only stretched four months from the date Mendez filed his

statement of reasons. Moreover, in line with this Court’s position relating to the

Territorial Court, Mendez has other adequate means of achieving his desired relief. He

can simply file his habeas petition in the Eastern District of North Carolina. Accordingly,

his petition for a writ of mandamus will be denied.




   1
      For the purposes of this decision, we do not decide whether we have jurisdiction to
order the Territorial Court to act. See In re Richards, 

, 776 (3d Cir. 2000)
(stating that the Virgin Islands District Court has mandamus jurisdiction over the
Territorial Court).