From Casetext: Smarter Legal Research

In re Bernard

United States Court of Appeals, Third Circuit
Mar 11, 2011
419 F. App'x 154 (3d Cir. 2011)

Opinion

No. 10-4237.

Submitted Pursuant to Rule 21, Fed. R.App. P. November 30, 2010.

Opinion filed: March 11, 2011.

On a Petition for Writ of Mandamus from the United States District Court for the Eastern District of Pennsylvania (Related to E.D. Pa.Crim. No. 04-cr-00580).

David Bernard, Philadelphia, PA, pro se.

Before: McKEE, Chief Judge, ALDISERT and WEIS, Circuit Judges.


OPINION


David Bernard has filed a petition for a writ of mandamus in which he claims that his sentence imposed by the United States District Court for the Eastern District of Pennsylvania is "illegal" because he was sentenced by a "non-Article III judge."

Bernard pled guilty to a four-count indictment charging him with, inter alia, conspiracy to commit bank fraud. The Honorable Petrese B. Tucker, a District Judge in the Eastern District, sentenced Bernard in November 2005 to a term of sixty-three months in prison, three years of supervised release, and restitution of $601,231.84. This Court affirmed. United States v. Bernard, 214 Fed.Appx. 182 (3d Cir. 2007). The District Court thereafter denied Bernard's motion under 28 U.S.C. § 2255, rejecting a claim that the court lacked subject-matter jurisdiction over the criminal case. This Court denied Bernard's request for a certificate of appealability in January 2008.

Bernard now seeks a writ of mandamus on the ground that he is entitled to be resentenced by "an Article III judge," a contention premised upon the wholly unsupported assertion that Judge Tucker "took a Form 61 Commissioners Oath of Office," thereby rendering her "an employee of the Department of Justice." Mandamus Petition at 5.

We may issue writs of mandamus "in aid of our jurisdiction. 28 U.S.C. § 1651(a); see United States v. Christian, 660 F.2d 892, 894 (3d Cir. 1981) (explaining that "we must identify a jurisdiction that the issuance of the writ might assist"). Because Bernard's criminal proceedings are final and completed, his mandamus request fails at the threshold because it is not sought in aid of our appellate jurisdiction. In any event, the premise of Bernard's claim ( i.e., that Judge Tucker somehow lacked authority to impose sentence) is patently frivolous on its face, leaving Bernard with no claim to the drastic and extraordinary remedy of mandamus. See Cheney v. United States Dist. Court, 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). Accordingly, we will deny the mandamus petition.


Summaries of

In re Bernard

United States Court of Appeals, Third Circuit
Mar 11, 2011
419 F. App'x 154 (3d Cir. 2011)
Case details for

In re Bernard

Case Details

Full title:In re David BERNARD, Petitioner

Court:United States Court of Appeals, Third Circuit

Date published: Mar 11, 2011

Citations

419 F. App'x 154 (3d Cir. 2011)

Citing Cases

United States v. Carey

The Third Circuit recently addressed a petitioner's contention that a judge who takes a "Form 61…

Austin v. Dist. Attorney's Office of Northampton Cnty.

Austin's request for relief that would essentially reopen and redo his closed state criminal proceeding does…