142 F3d 442 Cly v. United States District Court for the District of Arizona

142 F.3d 442

Andrew CLY, Petitioner,
v.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA, Respondent;
United States of America, Real Party in Interest.

No. 97-71346.
D.C. NO. CR-96-300-PHX-ROS.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 12, 1998.
Decided April 30, 1998.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

Appeal from the United States District Court for the District of Arizona, Roslyn O. Silver, District Judge, Presiding.

2

Before SKOPIL and KOZINSKI, Circuit Judges, and WEINER,2 Senior District Judge.

MEMORANDUM1

3

Andrew Cly filed this petition for writ of mandamus seeking vacatur of an order of the district court directing he be remanded to the custody of the Attorney General for psychiatric evaluation, pursuant to 18 U.S.C. § 4246. As mandamus relief is not appropriate, the petition is denied.

4

In addressing a mandamus petition, we assess: 1. whether petitioner has no other adequate means, such as direct appeal, to obtain the requested relief; 2. whether petitioner will be damaged or prejudiced in any way not correctable on appeal; 3. whether the district court's order is clearly erroneous as a matter of law; 4. whether the district court's order is an oft-repeated error or manifests a persistent disregard of the federal rules; and 5. whether the district court's order raises new and important problems or issues of first impression. Bauman v. Unites States Dist. Ct., 557 F.2d 650, 654-55 (9th Cir.1977). These guidelines are cumulative and a proper disposition often requires a balancing of competing factors. Id. at 655. No single guideline is determinative. See Credit Suisse v. United States Dist. Ct., 130 F.3d 1342, 1345 (9th Cir.1997).

5

Cly has an adequate remedy at law. If he is certified to pose a substantial risk of bodily injury to another person or serious damage to the property of another, pursuant to 18 U.S.C. § 4246, he would be able to bring a direct appeal. He will not be damaged or prejudiced by the district court's order directing he undergo the custodial examination since the record indicates that he is already confined as a pretrial detainee in a halfway house. The district court did not commit clear error in directing that he undergo the § 4246 examination. Executive Software v. United States District Court, 24 F.3d 1545, 1551 (9th Cir.1994) ("the third factor, the existence of clear error as a matter of law, is dispositive). As the remaining Bauman factors are not relevant, we conclude that mandamus relief is not appropriate.

6

PETITION DENIED.

1

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

2

Charles R. Weiner, Senior United States District Judge for the Eastern District of Pennsylvania, sitting by designation