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Rauso v. Warden of FCI-Schuylkill

United States District Court, M.D. Pennsylvania

May 22, 2017

GENNARO RAUSO, Petitioner
v.
WARDEN OF FCI-SCHUYLKILL, CLERK OF COURTS FOR THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PA, Respondents

          MEMORANDUM

          Christopher C. Conner, Chief Judge United States District Court.

         Presently before the court is a petition for writ of habeas corpus (Doc 1) pursuant to 28 USC § 2241 filed by petitioner Gennaro Rauso (“Rauso”) a federal inmate incarcerated at the Schuylkill Federal Correctional Institution Minersville Pennsylvania Named as respondents are the Warden of FCI-Schuylkill and the Clerk of Court for the United States District Court for the Eastern District of Pennsylvania Rauso seeks inter alia an order compelling the Clerk of the Eastern District of Pennsylvania to file any motions and papers he submits in his Eastern District criminal case (Doc 1 at 26-29)

         Preliminary review of the petition has been undertaken see R Governing § 2254 C ases R4[1] and for the reasons set forth below the petition will be dismissed

         I Background

         Rauso recently filed a similar petition in the United States Court of Appeals for the Third Circuit The Third Circuit denied Rauso's petition and found as follows:

Gennaro Rauso a federal prisoner proceeding pro se petitions for a writ of mandamus and/or prohibition vacating several orders of the United States District Court for the Eastern District of Pennsylvania and compelling the Clerk of that Court to file certain motions For the reasons that follow we will deny the petition.
In 2010 Rauso pleaded guilty to equity skimming in violation of 12 USC § 1709-2 mail fraud in violation of 18 USC § 1341 access device fraud in violation of 18 USC § 1029 bank fraud in violation of 18 USC § 1344 and other crimes He was sentenced to 160 months' imprisonment We affirmed on direct appeal We ruled that the appellate waiver in Rauso's plea agreement was enforceable and precluded the arguments he had raised United States v Rauso, 548 Fed.Appx 36 39 (3d Cir 2013) (non-precedential).
Rauso filed a motion in District Court pursuant to 28 USC § 2255 to vacate his sentence Rauso filed an amended motion and in an order entered July 30 2014 the District Court granted the Government's motion to dismiss the amended motion The District Court decided that Rauso had waived his right to present a collateral challenge to his conviction and sentence under his plea agreement Rauso then filed various motions including a motion pursuant to Federal Rule of Civil Procedure 59(e) to alter amend or vacate the order of dismissal and a motion for leave to supplement his amended § 2255 motion In an order entered November 19 2014 the District Court denied Rauso's Rule 59(e) motion and motion to supplement his amended § 2255 motion The District Court also ordered Rauso to terminate filing papers in the Court.
Rauso appealed the July 30 2014 and November 19 2014 orders On March 3 2015 we denied Rauso's motion for a certificate of appealability We ruled that jurists of reason would not debate the District Court's conclusion that Rauso's claims are barred by the waiver in his plea agreement and that in light of this conclusion jurists of reason would agree that the District Court did not err in denying Rauso's motion to amend his § 2255 motion and his Rule 59(e) motion We also stated that we interpreted the District Court's filing injunction as limited to the § 2255 proceedings which would end upon the conclusion of Rauso's attempt to appeal See CA No 14-4729 3/3/15 Order.
On September 14 2016 the District Court issued an order denying requests by Rauso to file certain papers The District Court stated that it had ordered Rauso to terminate filing papers and that it would return his documents to him Although the order does not specify the documents that the Court would return it appears that on September 5 2016 Rauso submitted for filing a motion seeking among other things to compel the Clerk to enter on the docket motions he had submitted for filing on June 19 2015 and May 4 2016 and a motion to produce him for a hearing Rauso now seeks a writ of mandamus vacating the District Court's July 30 2014 November 19 2014 and September 14 2016 orders and compelling the District Court Clerk to file his motions The writ of mandamus traditionally has been used “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” In re Patenaude, 210 F.3d 135 140 (3d Cir 2000) (internal quotation and citations omitted).
“The writ is a drastic remedy that is seldom issued and its use is discouraged” Id. A petitioner must show that he has no other adequate means to attain the desired relief and that the right to a writ is clear and indisputable Id. at 141 See also In re School Asbestos Litig, 921 F.2d 1310 1313-14 (3d Cir 1990) (applying the same standard to a petition for writ of prohibition) It is within our discretion to refrain from issuing the writ even where these requirements are satisfied In re Chambers Dev Co Inc, 148 F.3d 214 223 (3d Cir 1998).
To the extent Rauso seeks a writ vacating the District Court's July 30, 2014 and November 19, 2014 orders, Rauso had an adequate means to attain this relief in his appeal of these orders. Rauso contends that the District Court's orders are void on various grounds, all of which could have been or were raised in his prior request for a certificate of appealability.
Rauso also has not shown that he did not have an adequate means to challenge the District Court's September 14, 2016 order by filing an appeal. Rauso seeks a writ vacating this order and compelling the District Court to file the motions he submitted on June 19, 2015, May 4, 2016, and September 5, 2016, but to the extent an appeal was available, mandamus may not be used as a substitute for appeal. See In re Chambers Dev., 148 F.3d at 226. It is unnecessary to address the applicability of the filing injunction to the documents Rauso sought to file or might seek to file because, even if inapplicable, we would decline to grant the ...

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