Third Circuit disposition — 082204np-pdf

HLD-126 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-2204
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IN RE: FREDERICK C. SISNEROS,
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 E.D. Pa. Civ. No. 07-cv-04294)
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Submitted Pursuant to Rule 21, Fed. R. App. P.
May 30, 2008
Before: SCIRICA, Chief Judge, ALDISERT and GARTH, Circuit Judges
(Filed: June 23, 2008)
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OPINION OF THE COURT
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PER CURIAM.
Frederick C. Sisneros, a prisoner at the State Correctional Institution at Smithfield
in Huntingdon, Pennsylvania, has filed a petition for a writ of mandamus seeking to
compel the recusal of a district judge. For the following reasons, we will deny the
petition.
In 2004, Sisneros filed a pro se petition for a writ of habeas corpus under 28
U.S.C. § 2254 in the United States District Court for the Eastern District of Pennsylvania.

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The case was assigned to District Judge Lawrence F. Stengel, who issued an order on
November 17, 2004, dismissing the petition because it raised claims that were adjudicated
in a prior habeas proceeding. On October 15, 2007, Sisneros filed a motion to vacate that
judgment under FED. R. CIV. P. 60(b). He argued in the motion that the judgment should
be vacated because Judge Stengel had previously presided over aspects of Sisneros’
criminal case while serving as a judge on the Court of Common Pleas of Lancaster
County. The motion was submitted with a copy of an order of the Court of Common
Pleas of Lancaster County issued on November 4, 1994, and signed by Judge Stengel,
directing the Commonwealth of Pennsylvania to show cause as to why various criminal
charges filed against Sisneros should not be dismissed with prejudice. On February 1,
2008, Sisneros filed a motion for recusal under 28 U.S.C. § 455(a), arguing that Judge
Stengel’s impartiality in adjudicating the Rule 60(b) motion might reasonably be
questioned because of his prior participation in state court criminal proceedings involving
Sisneros. The District Court has not yet ruled on the Rule 60(b) motion or the recusal
motion.
On April 30, 2008, Sisneros filed in this Court a petition for a writ of mandamus
seeking the disqualification of Judge Stengel in the pending Rule 60(b) proceedings.
Sisneros argues in the mandamus petition that he is clearly entitled to such relief under 28
U.S.C. § 455(a), and Clemmons v. Wolfe, 377 F.3d 322 (3d Cir. 2004), where we
announced a supervisory rule requiring that “each federal district court judge in this

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circuit recuse himself or herself from participating in a 28 U.S.C. § 2254 habeas corpus
petition of a defendant raising any issue concerning the trial or conviction over which that
judge presided in his or her former capacity as a state court judge.” Clemmons, 377 F.3d
at 328.
A mandamus petition is a proper means of challenging a district judge’s refusal to
recuse himself or herself pursuant to 28 U.S.C. § 455. See In re Sch. Asbestos Litig., 977
F.2d 764, 774-75 (3d Cir. 1992). Furthermore, we may entertain such a petition even
before a final judgment has been entered in the case, because “[i]nterlocutory review of
disqualification issues on petitions for mandamus is both necessary and appropriate to
ensure that judges do not adjudicate cases that they have no statutory power to hear.” Id.
at 778. Given that a writ of mandamus is an extraordinary remedy that is only available
where a litigant has no other adequate means of obtaining the desired relief, we have
recognized that it would not be appropriate to issue a writ of mandamus compelling the
disqualification of a district judge if a motion for recusal is pending in the district court.
See In re Kensington Intern., 353 F.3d 211, 223-24 (3d Cir. 2003). Because Judge
Stengel has not yet ruled on the motion for recusal that Sisneros filed on February 1,
2008, we conclude that he has not demonstrated that mandamus relief is warranted. We
offer no opinion as to the merits of the recusal claim.
For the foregoing reasons, we will deny the mandamus petition, and we will do so
without prejudice.

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