Larry Charles v.
Opinion
OPINION *
In this mandamus petition, Larry Charles “seeks an Order to compel the United States District Court for the Eastern District of Pennsylvania to issue a Certificate of Appealability” in connection with a 28 U.S.C. § 2254 petition he filed in 2013. Because mandamus may “not be used as a substitute for the regular appeals process,” Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81, 124 S.Ct. 2576, 159 L.Ed.2d 459, (2004), we will deny Charles’ petition.
Charles filed a § 2254 petition in 2013, seeking to attack a 25-50 year sentence imposed after he pleaded no contest to various sex crimes in Philadelphia County. The District Court denied his petition and his request for a certificate of appealability. We denied his request for a certificate of appealability — concluding that “jurists of reason would not debate the District Court’s assessment of his constitutional claims” — and also denied his request for rehearing. C.A. No. 15-3064. The Supreme Court denied his petition for a writ of certiorari, and also his petition for rehearing. Charles v. Harry, — U.S. —, 137 S.Ct. 671, 196 L.Ed.2d 557, reh’g denied, — U.S. —, 137 S.Ct. 1369, 197 L.Ed.2d 547 (2017).
Charles has exhausted all avenues to appeal the District Court’s denial of his request for a certificate of appealability— and has lost. He may not now use mandamus as yet another attempt at an appeal. Cheney, 542 U.S. at 380-81, 124 S.Ct. 2576. We will deny his petition. 1
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent,
. In the alternative, Charles asks us to recall our mandate denying his request for a certificate of appealability — a request that is "regarded as a second or successive application for purposes of [28 U.S.C.] § 2244(b)." Calderon v. Thompson, 523 U.S. 538, 553, 118 S.Ct 1489, 140 L.Ed.2d 728 (1998). Because Charles cannot meet § 2244(b)’s gatekeeping requirements — he does not claim to have newly discovered evidence of his actual innocence, or rely on a new rule of constitutional law, made retroactive to cases on collateral review — we will not recall our mandate. See United States v. Winkelman, 746 F.3d 134, 135 (3d Cir. 2014).
Reference
- Full Case Name
- In RE: Larry CHARLES, Petitioner
- Cited By
- 1 case
- Status
- Unpublished