Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit

9-14-2005

In re: Boyd Brown Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3550

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 05-3550 ___________

IN RE: BOYD B. BROWN, JR.,

Petitioner

___________________

On a Petition for Writ of Mandamus from the District Court of the Virgin Islands (Related to Civil App. No. 02-cv-00187) ____________________

Submitted under Rule 21, Fed. R. App. P. August 11, 2005

BEFORE: ROTH, BARRY and SMITH, CIRCUIT JUDGES

(Filed September 14, 2005)

OPINION

PER CURIAM

In the District Court of the Virgin Islands, Boyd B. Brown filed an appeal from an

order issued by the Territorial Court in his habeas corpus proceeding. On June 26, 2003,

the District Court considered his appeal and determined that it could not reach the merits

because Brown had not obtained a certificate of probable cause for appeal. Pursuant to Rule 14 of the Virgin Islands Rules of Appellate Procedure, the District Court remanded

the case to the Territorial Court for a determination whether a certificate of probable

cause should issue.

In May 2004, Brown filed a motion in the District Court for appointment of

counsel in his Territorial Court case. In December 2004, Brown filed a petition for writ

of mandamus in the District Court for an order compelling the Territorial Court to rule on

the probable cause issue. He contends that the Territorial Court has not ruled because it

“granted the notice of appeal.” In the ruling he describes, the Territorial Court waived the

posting of an appeal bond.

Brown has filed a petition for writ of mandamus in this Court. He seeks an order

to compel the District Court to rule on his motion for appointment of counsel and the

mandamus petition he filed there. In the alternative, he requests an order to require the

District Court to rule on his appeal.

Mandamus is an extraordinary remedy. See Kerr v. U.S. Dist. Ct.,

(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.’”

(citations omitted). A petitioner must show “‘no other adequate means to attain the

desired relief, and ... a right to the writ [that] is clear and indisputable.’” See In re

Patenaude,

(3d Cir. 2000) (citation omitted).

2 Under Rule 14 of the Virgin Islands Rules of Appellate Procedure, the District

Court may not proceed unless the Territorial Court has determined whether a certificate of

probable cause should issue. See V.I.R.A.P. 14 (2005). The District Court, in

compliance with Rule 14, and not in abdication of its duty, has not ruled on the merits of

Brown’s appeal or his motion for appointment of counsel. Therefore, mandamus relief to

compel the District Court to presently consider the appeal or the motion would be

inappropriate.

We also decline to issue an order to compel the District Court to rule on the

mandamus petition before it. An appellate court may issue a writ of mandamus when an

undue delay in adjudication can be considered a failure to exercise jurisdiction that rises

to the level of a due process violation, see Madden v. Myers,

(3d Cir.

1996). The District Court’s delay, of approximately eight months, in ruling on Brown’s

mandamus petition is of concern, see Madden,

; Hassine v. Zimmerman,

(3d Cir. 1998), particularly because Brown seeks relief in the District

Court from a purported delay in the Territorial Court. However, because we expect that

the District Court will promptly consider Brown’s mandamus petition, mandamus relief is

not warranted at this time. The denial of mandamus relief is without prejudice to a

renewed application if the District Court does not rule on the mandamus petition pending

before it within 60 days.