In re: Kirk Simmon
Filing
NOT PRECEDENTIAL PER CURIAM OPINION Coram: CHAGARES, VANASKIE and KRAUSE, Circuit Judges. Total Pages: 3. DLD-289
Case: 17-2147
Document: 003112668423
Page: 1
DLD-289
Date Filed: 07/07/2017
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-2147
___________
IN RE: KIRK A. SIMMONS,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the District of Delaware
(Related to D. Del. No. 1-13-cr-00097-001)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
June 22, 2017
Before: CHAGARES, VANASKIE and KRAUSE, Circuit Judges
(Opinion filed: July 6, 2017)
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OPINION*
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PER CURIAM
Kirk A. Simmons, a federal prisoner proceeding pro se, petitions for a writ of
mandamus to compel the United States District Court for the District of Delaware to rule
on his memorandum of law in support of his motion to vacate his sentence under 28
U.S.C. § 2255, and his motion requesting in-camera review of the grand jury
proceedings. 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: 17-2147
Document: 003112668423
Page: 2
Date Filed: 07/07/2017
In 2014, Simmons pleaded guilty in the District of Delaware to one count of
attempted enticement and coercion of a minor, a violation of 18 U.S.C. § 2242(b). He
was sentenced to a mandatory minimum term of 120 months’ incarceration followed by
ten years of supervised release. He did not file a direct appeal. In June 2015, he filed a
motion to vacate his sentence under 28 U.S.C. § 2255. In September 2016, Simmons
filed a memorandum of law in support of his § 2255 motion.
In October 2016, Simmons filed a mandamus petition seeking an order directing
the District Court to rule on then-pending motions to compel and supplement, as well as
his § 2255 motion. After the District Court ruled on the motions to compel and
supplement, Simmons amended his mandamus petition to seek only an order directing a
ruling on his § 2255 motion. On January 18, 2017, Simmons filed a motion requesting
in-camera review of the grand jury proceedings. On January 25, 2017, this Court denied
Simmons’ mandamus petition, without prejudice to a renewed petition if the District
Court did not rule on the § 2255 motion. By court order entered on February 3, 2017, the
District Court denied Simmons’ § 2255 motion, and denied his motion requesting incamera review as moot. Simmons appealed, and this Court, by order entered on April 28,
2017, denied Simmons’ request for a certificate of appealability.
In the instant mandamus petition, Simmons alleges that the District Court
“ignored” both his memorandum of law in support of his § 2255 motion and his motion
for in-camera review of the grand jury proceedings, and requests that the District Court
be directed to rule on these filings.
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Case: 17-2147
Document: 003112668423
Page: 3
Date Filed: 07/07/2017
Mandamus is a drastic remedy that is granted in only extraordinary cases. See In
re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). To demonstrate that
mandamus is appropriate, a petitioner must establish that he has “no other adequate
means” to obtain the relief requested, and that he has a “clear and indisputable” right to
issuance of the writ. Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996). Mandamus may
not be used as a substitute for appeal. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d
at 378–79. Among other things, Simmons has no right to the relief he requests, as his §
2255 motion has been fully addressed on appeal and resolved adversely to Simmons.
Indeed, he raised the issue of his memorandum of law in his request for a certificate of
appealability. Accordingly, we will deny Simmons’ petition.
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