United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM U.S. SENIOR DISTRICT JUDGE
matter is a petition for mandamus filed by a prisoner held at
the United States Penitentiary-Leavenworth. Petitioner
proceeds pro se, and the Court grants leave to proceed in
of the Petition
Petitioner is a District of Columbia offender. He states that
in July 2017, his post-conviction appellate attorney, April
Fearnley, filed a motion for new trial under D.C. Code
§23-110. On August 1, 2018, the Superior Court for
the District of Columbia dismissed that motion as frivolous.
On March 13, 2019, the District of Columbia Court of Appeals
denied the petition for rehearing en banc (Doc. 1,
argues that “counsel has a statutory duty under D.C.
Code 11-2603 to weigh filing a D.C. Code 23-110”, and
he contends that Ms. Fearnley's filing of a motion that
was denied as frivolous violated D.C. Bar Rule
broadly asserts that he has “a right to be rewarded for
counsel violating Bar Rule 3.1 and 3.4.” As relief, he
requests that the Court “compel the office for access
to administration of justice to give [him] access to justice
for counsel failing her obligations.”
Discussion Petitioner proceeds under 28
U.S.C. § 1361, which authorizes the federal district
courts “to compel an officer or employee of the United
States or any agency thereof to perform a duty owed to the
plaintiff.” Mandamus relief is an extraordinary remedy
and may issue only “to compel the performance of a
clear nondiscretionary duty.” Pittston Coal Group
v. Sebben, 488 U.S. 105, 121 (1988)(quotations omitted).
A court may grant mandamus relief only where it finds
“(1) a clear right in the plaintiff to the relief
sought; (2) a plainly defined and preemptory duty on the part
of the defendant to do the action in question; and (3) no
other adequate [available] remedy….” Wilder
v. Prokop, 846 F.2d 613, 620 (10th Cir.
does not meet these standards. First, he has not clearly
identified a federal officer, employee, or agency as a
respondent. Next, he has not identified any clear right to
the relief he seeks or explained the exact nature of the
relief he seeks. The dismissal of a motion filed by
petitioner's counsel as frivolous does not in itself
entitle petitioner to relief, nor is it apparent how a writ
of mandamus would benefit him.
Court concludes petitioner has not established grounds for
the issuance of a writ of mandamus. Because this matter is
dismissed due to petitioner's failure to state an
arguable ground for mandamus relief, the Court concludes this
matter qualifies as a strike under 28 U.S.C. § 1915(g).
See Fay v. United States, 389 Fed.Appx. 802, 2010 WL
2977454 (10th Cir. Jul. 29, 2010)(assessing
strikes for dismissal of federal prisoner's mandamus
action and subsequent appeal).
THEREFORE, BY THE COURT ORDERED petitioner's motion for
leave to proceed in forma pauperis (Doc. 2) is granted.
FURTHER ORDERED the petition for writ of mandamus is denied.
IS SO ORDERED.