David Bernard v.

Third Circuit

David Bernard v.

419 F. App'x 154

CourtCourt of Appeals for the Third Circuit

DecidedMarch 11, 2011

Docket10-4237

StatusUnpublished

This text of 419 F. App'x 154 (David Bernard v.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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David Bernard v., 419 F. App'x 154 (3d Cir. 2011).

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Opinion

OPINION

PER CURIAM.

David Bernard has filed a petition for a writ of mandamus in which he claims that his sentence imposed by the United States District Court for the Eastern District of Pennsylvania is “illegal” because he was sentenced by a “non-Article III judge.”

*155 Bernard pled guilty to a four-count indictment charging him with, inter alia, conspiracy to commit bank fraud. The Honorable Petrese B. Tucker, a District Judge in the Eastern District, sentenced Bernard in November 2005 to a term of sixty-three months in prison, three years of supervised release, and restitution of $601,231.84. This Court affirmed. United States v. Bernard, 214 Fed.Appx. 182 (3d Cir.2007). The District Court thereafter denied Bernard’s motion under 28 U.S.C. § 2255, rejecting a claim that the court lacked subject-matter jurisdiction over the criminal case. This Court denied Bernard’s request for a certificate of appeala-bility in January 2008.

Bernard now seeks a writ of mandamus on the ground that he is entitled to be re-sentenced by “an Article III judge,” a contention premised upon the wholly unsupported assertion that Judge Tucker “took a Form 61 Commissioners Oath of Office,” thereby rendering her “an employee of the Department of Justice.” Mandamus Petition at 5.

We may issue writs of mandamus “in aid of’ our jurisdiction. 28 U.S.C. § 1651(a); see United States v. Christian, 660 F.2d 892, 894 (3d Cir.1981) (explaining that “we must identify a jurisdiction that the issuance of the writ might assist”). Because Bernard’s criminal proceedings are final and completed, his mandamus request fails at the threshold because it is not sought in aid of our appellate jurisdiction. In any event, the premise of Bernard’s claim (¿a, that Judge Tucker somehow lacked authority to impose sentence) is patently frivolous on its face, leaving Bernard with no claim to the drastic and extraordinary remedy of mandamus. See Cheney v. United States Dist. Court, 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). Accordingly, we will deny the mandamus petition.

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OPINION

PER CURIAM.

David Bernard has filed a petition for a writ of mandamus in which he claims that his sentence imposed by the United States District Court for the Eastern District of Pennsylvania is “illegal” because he was sentenced by a “non-Article III judge.”

*155 Bernard pled guilty to a four-count indictment charging him with, inter alia, conspiracy to commit bank fraud. The Honorable Petrese B. Tucker, a District Judge in the Eastern District, sentenced Bernard in November 2005 to a term of sixty-three months in prison, three years of supervised release, and restitution of $601,231.84. This Court affirmed. United States v. Bernard, 214 Fed.Appx. 182 (3d Cir.2007). The District Court thereafter denied Bernard’s motion under 28 U.S.C. § 2255, rejecting a claim that the court lacked subject-matter jurisdiction over the criminal case. This Court denied Bernard’s request for a certificate of appeala-bility in January 2008.

Bernard now seeks a writ of mandamus on the ground that he is entitled to be re-sentenced by “an Article III judge,” a contention premised upon the wholly unsupported assertion that Judge Tucker “took a Form 61 Commissioners Oath of Office,” thereby rendering her “an employee of the Department of Justice.” Mandamus Petition at 5.

We may issue writs of mandamus “in aid of’ our jurisdiction. 28 U.S.C. § 1651(a); see United States v. Christian, 660 F.2d 892, 894 (3d Cir.1981) (explaining that “we must identify a jurisdiction that the issuance of the writ might assist”). Because Bernard’s criminal proceedings are final and completed, his mandamus request fails at the threshold because it is not sought in aid of our appellate jurisdiction. In any event, the premise of Bernard’s claim (¿a, that Judge Tucker somehow lacked authority to impose sentence) is patently frivolous on its face, leaving Bernard with no claim to the drastic and extraordinary remedy of mandamus. See Cheney v. United States Dist. Court, 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). Accordingly, we will deny the mandamus petition.

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419 F. App'x 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-bernard-v-ca3-2011.

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