Third Circuit disposition — 084873np-pdf

CLD-216 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-4873
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IN RE: CLINTON BUSH,
Petitioner
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On a Petition for Writ of Mandamus from the
United States District Court for the Eastern District of Pennsylvania
(Related to 98-CR-00370)
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Submitted Pursuant to Rule 21, Fed. R. App. P.
June 11, 2009
Before: RENDELL, HARDIMAN and NYGAARD, Circuit Judges
(Opinion filed: July 13, 2009)
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OPINION
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PER CURIAM
Clinton Bush, a federal prisoner, has filed a petition for a writ of mandamus, asking
this Court to compel the District Court to amend his sentence. For the reasons that follow,
we will deny the petition.
Bush pleaded guilty in December 1998 in the United States District Court for the
Eastern District of Pennsylvania to one count of possession of a firearm by a convicted

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It appears that Bush waived his appellate rights. Bush has made numerous1
unsuccessful attempts to challenge his conviction and sentence, as reflected in appeals to
this Court, including a § 2255 motion, see C.A. No. 01-3839; a motion filed pursuant to
Fed. R. Civ. P. 60(b)(6), see C.A. No. 03-4027; and two petitions filed pursuant to 28
U.S.C. § 2241, see C.A. No. 07-1974 and C.A. No. 08-2929.
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felon in violation of 18 U.S.C. § 922(g), and was sentenced to 180 months imprisonment
with a five year period of supervised release. He argues here that the maximum sentence
for that violation is 120 months, and that the District Court’s assertion that his 180 month
sentence is authorized under 18 U.S.C. § 924(e)(1) is not supported by the record.
As Bush recognizes, mandamus is an extraordinary remedy. Kerr v. U.S. Dist. Ct.,
426 U.S. 394, 402 (1976). Within the discretion of the issuing court, mandamus
traditionally may be “used . . . only 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.”
Id. (internal quotations and citations omitted). A petitioner must show “‘no other adequate
means to attain the desired relief, and . . . a right to the writ [that] is clear and
indisputable.’” In re Patenaude, 210 F.3d 135, 141 (3d Cir. 2000) (citation omitted).
Mandamus is not a substitute for appeal. Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380-81
(2004).
Bush’s claim is one that could have been addressed on direct appeal. Bush’s1
failure to raise the issue on direct appeal does not translate to a finding that he has “no
other adequate means to attain the desired relief.” Oracare DPO, Inc. v. Merin, 972 F.2d
519, 523 (3d Cir. 1992) (Petitioner for writ of mandamus will not be found to lack

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adequate means to obtain relief simply because he allowed time to appeal to expire).
Accordingly, mandamus relief is not appropriate here, and the petition will be denied.

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