Arthur D'Amario, III v., No. 14-2108 (3d Cir. 2014)
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DLD-277 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 14-2108 ___________ IN RE: ARTHUR D AMARIO III, Petitioner ____________________________________ On a Petition for Writ of Mandamus from the United States District Court for the District of New Jersey (Related to D.N.J. Crim. No. 06-cr-00112-001) ____________________________________ Submitted Pursuant to Rule 21, Fed. R. App. P. June 12, 2014 Before: SMITH, HARDIMAN and NYGAARD, Circuit Judges (Opinion filed: June 19, 2014) _________ OPINION _________ PER CURIAM Arthur D Amario III has filed a petition for a writ of mandamus, asking for the following relief: (1) For the forced recusal of Judge Paul S. Diamond from U.S. v. D Amario, No. CR 6-112-PSD (D/NJ), due to bias, judicial fraud and criminality ; (2) For the release of Petitioner from a false imprisonment ; and (3) That this Court place Judge Diamond under arrest and subject him to a comprehensive inpatient mental evaluation. Because D Amario s requests are either frivolous or not properly brought in a petition for a writ of mandamus, we will deny the petition. As to his first request, while mandamus is available to review a district court s refusal to recuse pursuant to 28 U.S.C. § 455(a), see Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 163 (3d Cir. 1993), D Amario s request is baseless. We see nothing in the record that would give us reason to question the District Court s impartiality. As to his second, mandamus is not a proper means for seeking release from imprisonment, as mandamus cannot serve as a substitute for an appeal. See Madden v. Myers, 102 F.3d 74, 77 (3d Cir. 1996). Indeed, D Amario s appeal from the revocation of his supervised release is currently pending. See C.A. No. 13-3515. Finally, D Amario s third request, which is in any event frivolous, is not properly brought in a petition for a writ of mandamus. See In re McBryde, 117 F.3d 208, 220 n.7 (5th Cir. 1997).1 For the foregoing reasons, we will deny the petition for a writ of mandamus. In his supplement, D Amario states that previous failures to release him to his mother as part of his supervised release warrant[] a full criminal investigation by the Circuit. Courts of appeals do not undertake criminal investigations. While a district court has jurisdiction under 28 U.S.C. § 1361 to issue a writ to compel an officer or employee of the United States . . . to perform a duty owed to the plaintiff, the writ may issue only for a clear nondiscretionary duty. Heckler v. Ringer, 466 U.S. 602, 616 (1984). Initiation of a criminal investigation is a discretionary act and thus not the proper subject of a mandamus request. See, e.g., Jafree v. Barber, 689 F.2d 640, 643 (7th Cir. 1982). 2 1
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