Opinion
Case: 1:17-cv-00773
04-11-2017
ANTONIO JOHNSON, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE SERVICE, et al., Respondents.
(F-Deck)
Assigned To : Unassigned
Assign. Date : 4/27/2017
Description: Pro Se Gen. Civil MEMORANDUM OPINION
This matter is before the Court on Antonio Johnson's petition for a writ of mandamus. Generally, the petitioner alleges that the charging instrument, described as "a Bill of Indictment produced by the Internal Revenue Service (Criminal Investigation Division) on a single count of conspiracy to posse[ss] or intent to posse[ss] 5 kilogram[s] or more of powder cocaine and 50 grams or more of crack cocaine," Pet. at 3 (page number designated by the petitioner), is invalid and beyond the scope of the IRS's authority, see id. at 4. The petitioner demands "Dismissal of the Bill of Indictment account no. 402cr00579CHW," and his release from custody. Id. at 2.
Mandamus relief is proper only if "(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to plaintiff." Council of and for the Blind of Delaware County Valley v. Regan, 709 F.2d 1521, 1533 (D.C. Cir. 1983) (en banc). The party seeking mandamus has the "burden of showing that [his] right to issuance of the writ is 'clear and indisputable.'" Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988) (citing Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384 (1953)). This petitioner addresses none of these elements, and thus fails to meet his burden. Furthermore, a petition for a writ of mandamus is not a proper means by which to mount a collateral attack on a conviction or sentence. See Fortson v. U.S. Sentencing Comm'n, 109 F. App'x 437 (D.C. Cir. 2004) (affirming denial of "mandamus petition without prejudice on the ground that the petition represents a collateral attack on appellant's sentence that he must pursue through a motion to vacate his sentence filed in the sentencing court pursuant to 28 U.S.C. § 2255"); Boyer v. Conaboy, 983 F. Supp. 4, 8 (D.D.C. 1997) (noting that "the federal courts have been virtually unanimous that when a prisoner claims his § 2255 proceeding is inefficacious, lack of success in the sentencing court does not render his remedy inadequate or ineffective") (brackets, internal quotation marks, and citations omitted).
This is not the petitioner's first attack on his conviction and sentence. For example, his motion under 28 U.S.C. § 2255 was dismissed as untimely, and his subsequent petition under 28 U.S.C. § 2241 was dismissed because its claims were duplicative of the claims in the § 2255 motion. See Johnson v. United States, No. 4:02-CR-0579, 2012 WL 3011785, at *1 (D.S.C. July 23, 2012). The petitioner has been denied relief under the All Writs Act, and his petition for a writ of coram nobis has been denied. See Johnson v. United States, No. 4:01-CR-01003, 2016 WL 2659543 (D.S.C. May 9, 2016). --------
The Court will grant the petitioner's application to proceed in forma pauperis and deny the petition for a writ of mandamus. An Order accompanies this Memorandum Opinion. DATE: 4-11-17
/s/_________
United States District Judge