DLD-223 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

NO. 10-2397 ________________

IN RE: MARK GREEN, Petitioner ____________________________________

On Petition for a Writ of Mandamus from the United States District Court for the Eastern District of Pennsylvania (Related to E.D. Pa. Crim. No. 08-cr-00044-001) _____________________________________

Submitted Under Rule 21, Fed. R. App. P. June 17, 2010

Before: FUENTES, JORDAN and HARDIMAN, Circuit Judges

(Filed: June 29, 2010)

_______________________

OPINION _______________________

PER CURIAM.

Mark Green has filed a petition for a writ of mandamus asking this Court to order

recusal of the District Judge presiding over his pending criminal proceeding. We will

deny the mandamus petition.

Green was arrested in December 2007 and indicted in the United States District

Court for the Eastern District of Pennsylvania in January 2008 on five counts, including access device conspiracy under

(b)(2). On November 4, 2009, after a

trial at which Green elected to proceed pro se with standby counsel, a jury convicted

Green on four of the five counts. Green thereafter requested, and the District Court

appointed, new counsel, who filed an omnibus post-verdict motion in April 2010 and

moved for Green’s release pending sentencing and appeal. The District Court denied the

motion for release, see Docket # 117, and it has yet to conduct a sentencing hearing.

On June 9, 2010, Green filed a pro se “emergency motion for recusal,” the

substance of which mirrors his present mandamus request. The District Court denied the

recusal motion, explaining that it would not consider the pro se motion because Green is

currently represented by counsel.

Green now petitions for recusal via mandamus, alleging that the District Court’s

rulings throughout the case have displayed “both deep seated favoritism for the

Government and antagonism for Petitioner.” Ptn. at ¶ 4. In particular, Green offers a

litany of challenges to the District Court’s actions, including the following: (1) the

District Court adopted the government’s position in denying pre-trial bail “without any

showing of proof;” (2) the District Court made “uncalled for” statements regarding

Green’s prior time in prison and his knowledge of the law; (3) the District Court

displayed bias by allowing the government to introduce evidence that it turned over on the

day of trial, and erred in holding that a warrant used to obtain that evidence was valid; (4)

the District Court referred to Green’s decision to proceed pro se as “foolish and unwise,”

2 and erred in denying Green’s pro se pre-trial motions; (5) the District Court “told [Green]

that if he waives his right to counsel now, he does so forever,” and had “ex parte

communications with the [AUSA] and without defendant;” (6) the District Court “barred”

Green from side-bar conversations during voir dire; (7) the District Court “refused to

allow [Green] to pick his own jury, but instead allowed standby counsel and the Court to

pick the jury;” (8) the District Court interrupted Green’s opening statement and erred in

its instructions to the jury; (9) the District Court “confused” and “frustrated” Green as he

questioned various witnesses; (10) the District Court displayed bias in its handling of the

jurors; and (11) the District Court repeatedly displayed antagonism, and denied a fair trial,

through its exercise of control over the proceedings. See Ptn. at ¶¶ 7-38.1 Green asks that

the District Judge be recused and the matter reassigned to a different judge.2

Issuance of a writ of mandamus is appropriate in extraordinary circumstances only.

Kerr v. United States Dist. Ct.,

(1976). “Before a writ of mandamus

may issue, a party must establish that (1) no other adequate means exist to attain the relief

he desires, (2) the party’s right to issuance of the writ is clear and indisputable, and

(3) the writ is appropriate under the circumstances.” Hollingsworth v. Perry,

Green further contends that the District Court lacks power to adjudicate the case because the indictment is “jurisdictionally defective,” and that the District Court acted beyond its authority when it denied a motion to dismiss based on an alleged speedy trial violation. Ptn. at ¶¶ 47, 49. 2 Green also asks that we “reverse the conviction ... and all pre-trial orders.” Ptn. at Concluding Paragraph.

3 705, 710 (2010) (per curiam) (quotation marks and punctuation omitted). We have

recognized that “[m]andamus is a proper means for this court to review a district court

judge’s refusal to recuse from a case pursuant to

(a), where the judge’s

impartiality might reasonably be questioned.” Alexander v. Primerica Holdings,

, 163 (3d Cir. 1993). It is well settled, however, that “judicial rulings alone almost

never constitute a valid basis for a bias or partiality motion,” Liteky v. United States,

(1994), and mandamus is not a substitute for pursing a challenge to adverse

rulings through appellate review after entry of a final judgment. See Cheney v. U.S. Dist.

Ct.,

(2004).

Having carefully reviewed Green’s petition and its attached exhibits, we conclude

that his complaints about the course of proceedings do not suffice to warrant mandamus

relief for judicial bias or partiality. The bulk of Green’s challenge is to rulings made

before and at trial, none of which clearly reflects “a deep-seated favoritism or antagonism

that would make fair judgment impossible.” Liteky,

. Further, although

Green sees evidence of bias in certain of the District Court’s comments regarding his

decision to proceed pro se, “judicial remarks during the course of a trial that are critical or

disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not

support a bias or partiality challenge.”

The evidence here simply does not support a

clear and indisputable right to mandamus relief. Insofar as Green asks that we overturn

his conviction and all pre-trial orders, that relief is more properly sought on appeal after

4 entry of a final judgment, not in this mandamus proceeding.

For these reasons, we will deny the petition for a writ of mandamus.3 Green’s

motion for a stay of proceedings pending our mandamus review is denied.

3 Green’s motion to proceed in forma pauperis in this mandamus proceeding is granted, as he has made the requisite showing of indigence. We note that Green has not sought “to evade the [Prison Litigation Reform Act (“PLRA”)] by masking as a mandamus petition a paper otherwise subject to the Act,” Madden v. Myers,

(3d Cir. 1996), and thus the requirements of the PLRA will not be applied in the present proceeding.

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