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November 22, 2005.

DAVID W. MITCHELL, Petitioner,

The opinion of the court was delivered by: KIM GIBSON, District Judge



This matter comes before the Court on David W. Mitchell's (hereinafter "Petitioner") Petition for a Writ of Mandamus (Document No. 1), the United States' (hereinafter "Respondent") Response thereto (Document No. 4), and the Petitioner's Response to the United States Response to Petitioner's Writ of Mandamus (Document No. 5) (hereinafter "Response").

  The Petitioner was given the deadline of May 6, 2006 to file a motion to vacate sentence pursuant to 28 U.S.C. § 2255. See Document No. 66 at Criminal No. 04-7-1J.*fn1 Subsequently, the Petitioner filed a one page document entitled "WRIT OF MANDAMUS" wherein the Petitioner, as a federal prisoner, wrote in pertinent part the following:
This WRIT is being filed pro-se by the defendant. Your honor on May 20, 2005, you gave an order pertaining to a pro-se petition for an extension of time to file post sentence motions (dockument [sic] no. 65).
Your order stated that the defendant shall file said motion to vacate sentence under 28 U.S.C. § 2255 on or before 5/6/2006.
The defendant is incarcerated in the Somerset Co. Jail. The law library is inadequate for the defendant to file said motion under 28 U.S.C. § 2255.
The usual practice at the Somerset Co. Jail is if the legal material needed is not available in the jails [sic] law library they go over to the law library at the Somerset Co. Court house [sic] and copy the materials needed for the inmates.
The materials needed are not in the jails [sic] law library so the defendant requested that the legal material be retrieved from the Somerset Co. Court house. [sic] This request was denied because the material needed is 400± pages and they will not copy that many pages. The defendant then requested that the material needed be signed out of the law library. This request was also denied.
The deputy warden stated that they don't have any obligations to provide the material needed to file said motion.
The defendant believes the jail should have an adequate law library and provide access to the courts when needed.
The defendant requests this court command that the material needed be provided by the Somerset Co. Jail. The warden is stopping the defendant from complying with the order given on May 20, 2005. In turn the county jail is in violation of the order [sic] Thank you for your time and consideration [sic] in this matter.
The Petitioner in his Response describes the books contained in the law library in the Somerset County Jail, only one of which ("West law Pa. Rules of federal court") appears to pertain to federal law, practices or procedures.*fn2 The Petitioner then refines his vague request made in his original petition: "The material that was requested was one copy of 28 U.S.C. § 2255 and the accompanying rule governing section 2255, one copy of a forms and commentary book." Response, p. 4. The Petitioner further requests that his Response be considered an amendment to his petition if the original petition be denied and permit an amendment to be made. Response, p. 5. The Court notes that the Petitioner has filed a "Motion to Vacate Sentence and Set Aside Guilty Plea" and accompanying brief in support (Document Nos. 79, 80 at Criminal No. 2004-7J). However, the Court does not find that this renders the present matter moot as the Petitioner has not indicated that he has been given access to the requested materials as of the date of this Memorandum Opinion. Moreover, it is clear that from a brief glance at his motion, the Petitioner typed the motion himself and did not employ the form of motion for a Motion to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody found in the appendix to 28 U.S.C. § 2255.*fn3 The Petitioner is still within the time limit provided for filing a motion to vacate, and access to these requested materials may provide assistance to him in a manner that may allow him to amend the motion he has filed. The Court notes that it will not consider the substance of the Motion to Vacate Sentence and Set Aside Guilty Plea until after issuance of this opinion. The Court will grant the writ of mandamus.


  Jurisdiction over the Petitioner's Petition is proper pursuant to 28 U.S.C. §§ 1331 and 1361. 28 U.S.C. § 1361 states that "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." This Court determines that, as to the incarceration of federal prisoners, the Somerset County Jail is a federal agency, as the federal government has control over the jail's incarceration of federal prisoners pursuant to contract. This Court has previously determined that the presence of federal control is the determining factor regarding whether an entity is a federal agency for the purpose of establishing jurisdiction under 28 U.S.C. § 1361. Nguyen v. United States Catholic Conference, 548 F.Supp. 1333, 1338-39 (W.D. Pa. 1982). Accordingly, jurisdiction is proper pursuant to 28 U.S.C. § 1361.

  Alternatively, jurisdiction is also proper pursuant to 28 U.S.C. § 1331, federal question jurisdiction. Federal question jurisdiction exists where an issue of federal law "appears upon the face of the complaint." Difelice v. Aetna U.S. Healthcare, 346 F.3d 442, 445-46 (3d Cir. 2003). This Court notes that it appears on the face of the Petitioner's Petition that he is raising a constitutional issue regarding his right to access to the courts.


  The Petitioner asserts that he requested copies of 28 U.S.C. § 2255, "the accompanying rule governing section 2255" and "one copy of a forms and commentary book."*fn4 (Document No. 5). The Petitioner claims that these items are not available to him in the jail's law library, but he also recognizes that he cannot prove their absence other than to assert that his requested items are not present. The Petitioner asserts further that his request to obtain these materials from the Somerset County Courthouse Law Library was denied because they exceeded 400 pages and such a number of copies would not be permitted to be made and the actual book was not permitted to be removed from the Courthouse Law Library. (Document Nos. 1, 5). This Court has the authority to issue a Writ of Mandamus pursuant to the All Writs Act. 28 U.S.C. § 1651(a). The Act states that "[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Id. The Court will now examine the standard for issuing a Writ of Mandamus.

  According to the Supreme Court, "[t]he extraordinary remedy of mandamus under 28 U.S.C. § 1361 will issue only to compel the performance of a `clear nondiscretionary duty.'" Pittston Coal Group v. Sebben, 488 U.S. 105, 121, 109 S.Ct. 414, 424, 102 L. Ed. 2d 408, 425 (1988) (quoting Heckler v. Ringler, 466 U.S. 602, 616 (1984)). The Petitioner must show that he has no other adequate means to attain the relief he desires and that he has a clear and indisputable right to the writ. See Glenmede Trust Co. v. Hutton, 56 F.3d 476, 482 (3d Cir. 1995). Once the Petitioner has made such a showing, it is still within the discretion of this Court to determine whether to issue the writ. See id.

  The Petitioner asserts that he has a constitutional right to the materials he requests. (Document No. 5). Indeed, the materials requested consist of the statute and accompanying annotations and rules addressing the legal vehicle by which he is able to file a motion to vacate sentence. Although the Petitioner has filed a motion to vacate, the Court cannot trust that any legal argument therein provides a sufficient basis to allow him to succeed without the basic guidance provided by the annotated version of 28 U.S.C. § 2255, the statute establishing the procedure and right to file a motion to vacate sentence. Being denied this material as a pro se petitioner at this stage prevents the Petitioner from addressing the potential legal arguments that could allow him to obtain a possible vacation of his sentence. In the Court's view, to deny such access to necessary legal materials is equivalent to denying the Petitioner access to the Court itself. Therefore, the Petitioner's meaningful access to this Court is at issue, and such a right is clearly protected by law. Lewis v. Casey, 518 U.S. 343, 349-355, 116 S.Ct. 2174, 2179-2182, 135 L.Ed.2d 606, 616-620 (1996). Accordingly, even if library materials were routinely made available to the Petitioner by Somerset County Jail personnel, but denied to him in this instance for the reason that excessive copies would be needed thereby resulting in a denial of the Petitioner's right of access to the courts, then the Petitioner has met his burden to show that he has a clear and indisputable right to this writ, which will compel a "clear nondiscretionary duty." Additionally, the Court notes that the Petitioner has no other means of obtaining these materials other than by court order, i.e., this extraordinary writ.

  The Petitioner asserts that he has not been provided access to 28 U.S.C. § 2255 and accompanying annotations, rules and form. This Court notes that the Petitioner was denied access to a copy of the information sought because the number of pages requested was deemed to be too numerous and subsequently the Petitioner's alternate request for the actual volume containing the requested information was also denied. As a result, the Petitioner has attempted to simplify his request for numerous copies, but was unable to limit his copying request when his request to review the actual material sought to be copied was denied to him. Therefore the Petitioner cannot limit his copying request when he is without access to even review the material sought and is without any independent personal knowledge of the contents of the volume sought. See Corgain v. Miller, 708 F.2d 1241, 1250 (7th Cir. 1983) (noting the "Catch-22" created by this photocopying system); Rich v. Zitnay, 644 F.2d 41, 43 (1st Cir. 1981) (same). It has been said that: [l]egal research often requires browsing through various materials in search of inspiration; tentative theories may have to be abandoned in the course of research in the face of unfamiliar adverse precedent. New theories may occur as a result of a chance discovery of an obscure or forgotten case. Certainly a prisoner, unversed in the law and the methods of legal research, will need more time or more assistance than the trained lawyers in exploring his case. It is unrealistic to expect a prisoner to know in advance exactly what materials he needs to consult.

 Williams v. Leeke, 584 F.2d 1336, 1339 (4th Cir. 1978).

  This Court notes that it has consulted volumes of treatises and statutes totaling in the hundreds of pages in the course of addressing this Petition. In light of the availability of these materials, this Court has printed and copied a few hundred pages from various cases when addressing the Petition sub judice. Based upon the Petitioner's description of the jail library, it is clearly inadequate for his research requirements. This Court cannot fathom how the Petitioner could possibly prepare a 28 U.S.C. § 2255 Motion to Vacate without access to a volume ...

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