in Re: Johnny Lopez v. United States District Court, 426 U.S. 394, 403 1976

1
HPS-24 (January 2006) NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-1108
________________
IN RE: JOHNNY LOPEZ,
Petitioner
____________________________________
On Petition for a Writ of Mandamus from the
United States District Court for the
District of Delaware
(Related to D. Del. Civ. No. 05-cv-00019)
_____________________________________
Submitted Under Rule 21, Fed. R. App. P.
January 27, 2006
Before: CHIEF JUDGE SCIRICA, WEIS AND GARTH, CIRCUIT JUDGES
(Filed: February 7, 2006)
_______________________
OPINION
_______________________
PER CURIAM.
Johnny Lopez has filed a mandamus petition pursuant to 28 U.S.C. § 1651,
seeking to have this Court instruct the United States District Court for the District of
Delaware to compel respondents in the underlying habeas corpus proceeding to “produce
evidence” used to secure a search of his home and subsequently convict him of a drug
trafficking offense in 2003.

-- 1 of 2 --

The writ of mandamus is an extraordinary remedy. To justify the Court’s
use of this remedy, a petitioner must demonstrate that he has a clear and indisputable right
to issuance of the writ. Kerr v. United States District Court, 426 U.S. 394, 403 (1976);
DeMasi v. Weiss, 669 F.2d 114, 117 (3d Cir. 1982). No such showing has been made in
the instant case. A review of the record in the underlying proceeding shows that the state
court record was filed in the District Court on August 1, 2005. If Lopez believes that the
state court record is incomplete, he is certainly free to bring that concern to the District
Court’s attention. Any challenge to the actual state court conviction that is the subject of
the petition filed pursuant to 28 U.S.C. § 2254, however, must first be resolved by the
District Court. Lopez will have an opportunity for appellate review in this Court after the
District Court has entered a final order disposing of his § 2254 petition.
Accordingly, we will deny the petition.
2

-- 2 of 2 --