In Re: David James Ward

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: FISHER, JORDAN and VANASKIE, Circuit Judges. Total Pages: 3. CLD-365

Case: 16-3159

Document: 003112376813

Page: 1

CLD-365

Date Filed: 08/10/2016

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3159
___________
IN RE: DAVID JAMES WARD,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the District of New Jersey
(Related to 2-96-cr-000061-001)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
July 28, 2016
Before: FISHER, JORDAN and VANASKIE, Circuit Judges
(Opinion filed: August 10, 2016)
_________
OPINION *
_________

PER CURIAM
Petitioner David James Ward filed this petition for a writ of mandamus pursuant to
28 U.S.C. § 1651, seeking to have this Court act directly or compel the District Court to
rule on Ward’s pending § 2255 motion, resulting in the modification of Ward’s sentence.
We will deny the petition.

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 16-3159

Document: 003112376813

Page: 2

Date Filed: 08/10/2016

In 1996, Ward was indicted for kidnapping, and entered into a guilty plea which
had a Sentencing Guidelines range of 210-262 months. Ward also pleaded guilty to a
sexual assault that occurred during the kidnapping. The District Judge enhanced Ward’s
sentence to 720 months. Ward argues that because the grand jury did not indict him for
the sexual assault, the District Judge applied an unconstitutional sentencing enhancement
to find that an aggravated rape had occurred during the crime and thereby violated
Ward’s right to due process. Ward rests his argument on the contention that the
indictment returned by the grand jury did not set forth the essential elements of the
aggravated crime of sexual assault, even though Ward admits in his papers that the
assault occurred and he pleaded guilty to it. Ward concludes that the District Court
“simply does not have the authority to accept a plea to an offense not charged in the
indictment” and argues that his sentence should be reduced. Critically for our purposes
here, Ward has stated in his petition that he has filed an “emergency Motion 28 U.S.C.
2255” with the sentencing court regarding these issues. Ward asks this Court to act
directly or to compel the District Court to act upon his § 2255 motion.
A writ of mandamus is an extreme remedy that is invoked only in extraordinary
situations. See Kerr v. U.S. Dist. Court, 426 U.S. 394, 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.’” Id. (citations omitted). A petitioner must show
“no other adequate means to attain the desired relief, and . . . [a] right to the writ [that] is
2

Case: 16-3159

Document: 003112376813

Page: 3

Date Filed: 08/10/2016

clear and indisputable.’” In re Patenaude, 210 F.3d 135, 141 (3d Cir. 2000) (citing
Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 861 (3d Cir. 1994)).
Here, Ward has not demonstrated that he has “no other means to attain the desired
relief.” He has simultaneously filed a § 2255 motion that is pending in the District Court.
A motion to vacate sentence under 28 U.S.C. § 2255 is the presumptive means to
challenge collaterally a federal conviction or sentence. See In re Dorsainvil, 119 F.3d
245, 249 (3d Cir. 1997); Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971).
There is no evidence that the District Court is refusing to exercise its jurisdiction or
undertake its duties. Given that consideration of the § 2255 motion is underway, Ward
has not established a “clear and indisputable” concurrent right to relief by writ of
mandamus.
We conclude that there are no grounds here for an extraordinary remedy. Ward’s
petition for a writ of mandamus will be denied.

3