In re: Larry Charle
NOT PRECEDENTIAL PER CURIAM OPINION Coram: CHAGARES, VANASKIE and KRAUSE, Circuit Judges. Total Pages: 2. DLD-262
Date Filed: 06/14/2017
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
IN RE: LARRY CHARLES,
On a Petition for Writ of Mandamus from the
United States District Court for the Eastern District of Pennsylvania
(Related to E.D. Pa Civ. Nos. 2-13-cv-07548 & 2-14-cv-00189)
Submitted Pursuant to Rule 21, Fed. R. App. P.
May 25, 2017
Before: CHAGARES, VANASKIE, and KRAUSE, Circuit Judges
(Opinion filed: June 14, 2017)
In this mandamus petition, Larry Charles “seeks an Order to compel the United
States District Court for the Eastern District of Pennsylvania to issue a Certificate of
Appealability” in connection with a 28 U.S.C. § 2254 petition he filed in 2013. Because
mandamus may “not be used as a substitute for the regular appeals process,” Cheney v.
U.S. Dist. Court, 542 U.S. 367, 380–81, (2004), we will deny Charles’ petition.
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Date Filed: 06/14/2017
Charles filed a § 2254 petition in 2013, seeking to attack a 25–50 year sentence
imposed after he pleaded no contest to various sex crimes in Philadelphia County. The
District Court denied his petition and his request for a certificate of appealability. We
denied his request for a certificate of appealability—concluding that “jurists of reason
would not debate the District Court’s assessment of his constitutional claims”— and also
denied his request for rehearing. C.A. No. 15-3064. The Supreme Court denied his
petition for a writ of certiorari, and also his petition for rehearing. Charles v. Harry, 137
S. Ct. 671, reh’g denied, 137 S. Ct. 1369 (2017).
Charles has exhausted all avenues to appeal the District Court’s denial of his
request for a certificate of appealability—and has lost. He may not now use mandamus
as yet another attempt at an appeal. Cheney, 542 U.S. at 380–81. We will deny his
In the alternative, Charles asks us to recall our mandate denying his request for a
certificate of appealability—a request that is “regarded as a second or successive
application for purposes of [28 U.S.C.] § 2244(b).” Calderon v. Thompson, 523 U.S.
538, 553 (1998). Because Charles cannot meet § 2244(b)’s gatekeeping requirements—
he does not claim to have newly discovered evidence of his actual innocence, or rely on a
new rule of constitutional law, made retroactive to cases on collateral review—we will
not recall our mandate. See United States v. Winkelman, 746 F.3d 134, 135 (3d Cir.
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