In re: Richard Pierce

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: RENDELL, FISHER and GREENAWAY JR., Circuit Judges. Total Pages: 2. ALD-222

Case: 14-1946

Document: 003111615757

Page: 1

ALD-222

Date Filed: 05/14/2014

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-1946
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IN RE: RICHARD PIERCE,
Petitioner
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On a Petition for Writ of Mandamus from the
United States District Court for the Eastern District of Pennsylvania
(Related to Crim. No. 08-cr-00245-001)
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Submitted Pursuant to Rule 21, Fed. R. App. P.
May 1, 2014
Before: RENDELL, FISHER and GREENAWAY, JR., Circuit Judges
(Filed: May 14, 2014)
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OPINION
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PER CURIAM
Richard Pierce has filed a petition for a writ of mandamus. For the reasons below,
we will deny the petition.
Pierce pleaded guilty to one count of conspiracy to distribute five kilograms or
more of cocaine. In his plea agreement, Pierce acknowledged that he faced a mandatory
minimum sentence of life in prison and waived his right to appeal or collaterally attack
his conviction and sentence. The District Court departed from both the mandatory
minimum and the guidelines range and sentenced Pierce to 180 months in prison. Pierce

Case: 14-1946

Document: 003111615757

Page: 2

Date Filed: 05/14/2014

appealed, and we upheld the appellate wavier and affirmed his sentence and conviction.
See C.A. No. 10-3328.
In July 2012, Pierce filed a motion to vacate his conviction and sentence pursuant
to 28 U.S.C. § 2255. The District Court dismissed the motion on August 23, 2013, and
on September 16, 2013, Pierce filed a motion pursuant to Fed. R. Civ. P. 60(b). On April
22, 2014, Pierce filed this mandamus petition in which he requests that we order the
District Court to act on his pending Rule 60(b) motion.
A writ of mandamus should be issued only in extraordinary circumstances. See
Sporck v. Peil, 759 F.2d 312, 314 (3d Cir. 1985). Determining whether an extraordinary
circumstance exists requires a two-part inquiry. First, it must be established that there is
no alternative remedy or other adequate means of relief. Second, a petitioner must
demonstrate a clear and indisputable right to the relief sought. Kerr v. United States
District Court, 426 U.S. 394, 403 (1976). Generally, mandamus relief is used 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, 319
U.S. 21, 26 (1943).
Here, Pierce does not have an alternative remedy to direct the District Court to act
on his pending motions. However, the delay in this case has not risen to the level of an
extraordinary circumstance. See Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996). We
are confident that the District Court will act on Pierce’s Rule 60(b) motion in a timely
manner. Accordingly, we will deny the mandamus petition without prejudice to refiling
if the District Court does not act within 120 days.
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