In re Pendleton, No. 18-1556

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: PER CURIAM
• Parties: IN RE: MICHAEL J. PENDLETON, Petitioner
• Decision Date: 23 March 2018
• Docket Number: No. 18-1556

IN RE: MICHAEL J. PENDLETON, Petitioner

No. 18-1556

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Submitted: March 16, 2018
March 23, 2018

DLD-155-E

NOT PRECEDENTIAL

On a Petition for Writ of Mandamus from the United States District Court for the Western District of Pennsylvania
(Related to W.D. Pa. Civ. No. 2-18-cv-00044)
District Court Judge: Honorable Keith A. Pesto

Submitted Pursuant to Rule 21, Fed. R. App. P.
March 16, 2018
Before: JORDAN, SHWARTZ and KRAUSE, Circuit Judges

OPINION^*

PER CURIAM

Michael Pendleton petitions for a writ of mandamus pursuant to 28 U.S.C. § 1651. Pendleton asks this Court to compel the District Court of the Western District of Pennsylvania to issue a preliminary injunction preventing the Alleghany County District

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Attorney's Office from retrying or resentencing Pendleton relating to a 1999 conviction. For the following reasons, we will deny the petition.

Pendleton is currently serving a prison sentence at the State Correctional Institution in Somerset, Pennsylvania, as a result of a conviction in the Allegheny County Court of Common Pleas. Pendleton's sentence was recently vacated, and he is scheduled for a resentencing hearing on April 11, 2018.

In January 2018, Pendleton filed a civil rights action in the District Court for the Western District of Pennsylvania, and a motion for a preliminary injunction seeking to prevent the Alleghany County Districts Attorney's Office from retrying or resentencing him. The Magistrate Judge issued a Report and Recommendation (R&R), recommending that the case be dismissed for lack of jurisdiction as a second or successive habeas petition. The Magistrate Judge found that Pendleton's complaint should properly be construed as a habeas petition, "[s]ince the relief that the pleading seeks is a release from confinement and a ban on being prosecuted." Dkt # 4, at 3. Since Pendleton has filed multiple habeas petitions, Pendleton was required to gain authorization from this Court before filing a successive petition. See 28 U.S.C. § 2244(b)(3)(A). As he did not obtain such authorization, the Magistrate Judge concluded that the District court lacked jurisdiction. See Burton v. Stewart, 549 U.S. 147, 153 (2007); Robinson v. Johnson, 313 F.3d 128, 139-40 (3d Cir. 2002). Pendleton then submitted a second motion seeking an immediate preliminary injunction. On March 1, 2018, the Magistrate Judge issued an order denying Pendleton's motion. On March 13, 2018, Pendleton filed the present

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