DLD-155-E                                                                         NOT PRECEDENTIAL

                              UNITED STATES COURT OF APPEALS
                                   FOR THE THIRD CIRCUIT
                                        ___________

                                                  No. 18-1556
                                                  ___________

                                IN RE: MICHAEL J. PENDLETON,
                                                      Petitioner
                             ____________________________________

                        On a Petition for Writ of Mandamus from the
             United States District Court for the Western District of Pennsylvania
                        (Related to W.D. Pa. Civ. No. 2-18-cv-00044)
                       District Court Judge: Honorable Keith A. Pesto
                         ____________________________________

                         Submitted Pursuant to Rule 21, Fed. R. App. P.
                                       March 16, 2018
                  Before: JORDAN, SHWARTZ and KRAUSE, Circuit Judges

                                      (Opinion filed: March 23, 2018)
                                                _________

                                                   OPINION *
                                                   _________

PER CURIAM

         Michael Pendleton petitions for a writ of mandamus pursuant to 28 U.S.C. § 1651.

Pendleton asks this Court to compel the District Court of the Western District of

Pennsylvania to issue a preliminary injunction preventing the Alleghany County District




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding
precedent.
Attorney’s Office from retrying or resentencing Pendleton relating to a 1999 conviction.

For the following reasons, we will deny the petition.

       Pendleton is currently serving a prison sentence at the State Correctional

Institution in Somerset, Pennsylvania, as a result of a conviction in the Allegheny County

Court of Common Pleas. Pendleton’s sentence was recently vacated, and he is scheduled

for a resentencing hearing on April 11, 2018.

       In January 2018, Pendleton filed a civil rights action in the District Court for the

Western District of Pennsylvania, and a motion for a preliminary injunction seeking to

prevent the Alleghany County Districts Attorney’s Office from retrying or resentencing

him. The Magistrate Judge issued a Report and Recommendation (R&R), recommending

that the case be dismissed for lack of jurisdiction as a second or successive habeas

petition. The Magistrate Judge found that Pendleton’s complaint should properly be

construed as a habeas petition, “[s]ince the relief that the pleading seeks is a release from

confinement and a ban on being prosecuted.” Dkt # 4, at 3. Since Pendleton has filed

multiple habeas petitions, Pendleton was required to gain authorization from this Court

before filing a successive petition. See 28 U.S.C. § 2244(b)(3)(A). As he did not obtain

such authorization, the Magistrate Judge concluded that the District court lacked

jurisdiction. See Burton v. Stewart, 

, 153 (2007); Robinson v. Johnson, 

, 139–40 (3d Cir. 2002). Pendleton then submitted a second motion seeking an

immediate preliminary injunction. On March 1, 2018, the Magistrate Judge issued an

order denying Pendleton’s motion. On March 13, 2018, Pendleton filed the present



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mandamus petition, requesting that the District Court be compelled to issue the requested

injunction.

       A writ of mandamus is a drastic remedy available only in extraordinary

circumstances. See In re Diet Drugs Prods. Liab. Litig., 

, 378 (3d Cir.

2005). To obtain the writ, a petitioner must show that “(1) no other adequate means

[exist] to attain the relief he desires, (2) the party’s right to issuance of the writ is clear

and indisputable, and (3) the writ is appropriate under the circumstances.” Hollingsworth

v. Perry, 

, 190 (2010) (per curiam) (alteration in original) (internal quotation

marks omitted). Notably, mandamus is not a substitute for an appeal; if a petitioner can

obtain relief by an ordinary appeal, a court will not issue the writ. See In re Ford Motor

Co., 

, 957 (3d Cir. 1997), abrogated on other grounds, Mohawk Indus., Inc.

v. Carpenter, 

(2009); In re Briscoe, 

, 212 (3d Cir. 2006).

       Pendleton has failed to show that he has no other adequate means to challenge the

denial of his motion for a preliminary injunction. Any claims of error regarding the

Magistrate Judge’s order can be set forth in an appeal to the District Court, and once the

District Court enters a final judgment Pendleton may appeal that as well if the result is

not in his favor. Mandamus is not a substitute for an appeal, so we will deny Pendleton’s

mandamus petition.




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