In re Whoolery, 102918 FED3, 18-2768

Docket Nº:18-2768
Opinion Judge:PER CURIAM
Party Name:IN RE: LEWIS WHOOLERY Petitioner
Judge Panel:Before: CHAGARES, GREENAWAY, JR. and FUENTES, Circuit Judges
Case Date:October 29, 2018
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit


No. 18-2768

United States Court of Appeals, Third Circuit

October 29, 2018


Submitted Pursuant to Fed. R. App. Pro. 21 September 20, 2018

On a Petition for Writ of Mandamus from the United States District Court for the Western District of Pennsylvania (Related to W.D. Pa. Crim. No. 2-10-cr-00144-002).

Before: CHAGARES, GREENAWAY, JR. and FUENTES, Circuit Judges



Lewis Whoolery petitions this Court for a writ of mandamus pursuant to 28 U.S.C. § 1651 compelling Judge Joy Flowers Conti to recuse herself from ruling on his motion filed pursuant to Fed.R.Civ.P. 60(b)(3), and from any further proceedings related to him. For the following reasons, we will deny the petition.

In 2013, Whoolery was convicted of conspiring to commit wire fraud, and sentenced to 120 months' imprisonment. The conviction stems from a mortgage fraud scheme through which appraisers overstated the true market values of properties, and loan officers submitted false information to lenders about the financial condition of borrowers. The scheme resulted in more than $80 million in fraudulent loans. We affirmed Whoolery's conviction on direct appeal. See United States v. Whoolery, 579 Fed.Appx. 78, 80 (3d Cir. 2014). Since then, Whoolery has sought unsuccessfully to attack his conviction.

The District Court denied Whoolery's timely motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, and we affirmed. See C.A. No. 15-1334. In 2015, Whoolery filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, raising numerous claims of ineffective assistance of counsel and prosecutorial misconduct. The District Court denied the motion in a 141-page opinion; Whoolery appealed, and we declined to issue a certificate of appealability (COA). See C.A. Nos. 16-3243 & 16-3483.

While that appeal was pending, Whoolery filed a motion pursuant to Fed.R.Civ.P. 60(b) to vacate the District Court's order denying his § 2255 motion, and a motion for an indicative ruling pursuant to Fed.R.Civ.P. 62.1. In his Rule 60(b) motion, he alleged that he had only recently...

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