In Re Tagliamonte , 238 F. App'x 764 ( 2007 )


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  •                                                                                                                            Opinions of the United
    2007 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    6-18-2007
    In Re Tagliamonte
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 07-1610
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
    Recommended Citation
    "In Re Tagliamonte " (2007). 2007 Decisions. Paper 921.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2007/921
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    HLD-112 (June 2007)                                         NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    NO. 07-1610
    ________________
    IN RE: RICHARD TAGLIAMONTE,
    Appellant
    ____________________________________
    On Appeal From the United States District Court
    For the District of New Jersey
    (D. N.J. Civ. No. 07-cv-00255)
    District Judge: Honorable Dennis M. Cavanaugh
    _______________________________________
    Submitted For Possible Dismissal Under 
    28 U.S.C. § 1915
    (e)(2)(B) or Summary Action
    Under Third Circuit LAR 27.4 and I.O.P. 10.6
    June 1, 2007
    BEFORE: CHIEF JUDGE SCIRICA, WEIS and GARTH, CIRCUIT JUDGES
    (Filed: June 18, 2007)
    _______________________
    OPINION
    _______________________
    PER CURIAM.
    Richard Tagliamonte, proceeding pro se, appeals from an order of the United
    States District Court for the District of New Jersey denying his petition for a writ of
    prohibition. We will dismiss this appeal pursuant to 
    28 U.S.C. § 1915
    (e)(2)(B).
    In his petition, Tagliamonte alleged that he was arrested in 2004 and
    1
    confined in the Federal Detention Center in Philadelphia. He stated that the search
    warrants issued in his case were invalid, that he pleaded not guilty to the charges against
    him, and that he is awaiting trial. Although much of the petition is unclear, Tagliamonte
    asserted that the District Court lacks jurisdiction over the criminal proceedings, and sought
    a writ directing his release from custody and declaring his indictment null and void.
    The District Court treated Tagliamonte’s filing as a mandamus petition, and
    recognized that it has jurisdiction under 
    28 U.S.C. § 1361
     to compel an officer or
    employee of the United States or any agency to perform a duty owed to the plaintiff. The
    District Court correctly denied mandamus relief because Tagliamonte did not identify any
    such officer or employee who owes a duty to him, and because he has other available
    remedies. See Billiteri v. United States Bd. of Parole, 
    541 F.2d 938
    , 946 (2d Cir. 1976)
    (noting that a plaintiff must lack another remedy for a writ of mandamus to issue under
    § 1361). Tagliamonte may challenge the charges against him in his pending criminal
    proceedings, or the legality of his confinement in a habeas petition under 
    28 U.S.C. § 2241
    .
    Although Tagliamonte sought a writ under 
    28 U.S.C. § 1651
    (a), the All
    Writs Act is a residual source of authority to issue writs that are not otherwise covered by
    statute; it does not authorize courts to issue writs whenever compliance with statutory
    procedures appears inconvenient or less appropriate. See United States v. Machado, 
    465 F.3d 1301
    , 1308 (11 th Cir. 2006). The District Court did not err in considering whether a
    2
    writ should issue under § 1361 or in treating Tagliamonte’s filing as a mandamus petition.
    See In re Sch. Asbestos, 
    921 F.2d 1310
    , 1313 (3d Cir. 1990) (noting in an action under §
    1651(a) that modern courts have shown little concern for the technical differences between
    mandamus and prohibition). In sum, a petition for a writ of prohibition is not a proper
    vehicle to challenge a criminal matter that is proceeding before a District Judge.
    Accordingly, we shall dismiss this appeal pursuant to 
    28 U.S.C. § 1915
    (e)(2)(B).
    3
    

Document Info

Docket Number: 07-1610

Citation Numbers: 238 F. App'x 764

Filed Date: 6/18/2007

Precedential Status: Non-Precedential

Modified Date: 1/12/2023