BLD-083 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-4676
___________
IN RE: MICHAEL CURTIS REYNOLDS,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Middle District of Pennsylvania
(Related to M.D. Pa. Crim. No. 05-cr-00493)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
January 6, 2011
Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges
(Opinion filed: 1/24/2011 )
_________
OPINION
_________
PER CURIAM
Pro se petitioner, Michael Curtis Reynolds, seeks a writ of mandamus compelling
the United States District Court for the Middle District of Pennsylvania to conduct a
“Franks hearing.”1 Finding no basis for granting mandamus relief, we will deny the
petition.
On July 12, 2007, Reynolds was found guilty by a jury of five counts of a six-
1
See Franks v. Delaware, 438 U.S. 154 (1978).
count superseding indictment. He was subsequently sentenced to 360 months
imprisonment and three years supervised release, and was ordered to pay a $500.00
special assessment. We affirmed the Judgment and Commitment in a non-precedential
opinion issued on March 18, 2010,2 and the Supreme Court denied Reynolds’ petition for
writ of certiorari on October 4, 2010. Despite the unfavorable outcome of his direct
appeal and cert. petition, Reynolds apparently believes that he is nonetheless entitled to a
hearing regarding the affidavit of probable cause used to support the search warrant
issued in the underlying criminal action. According to Reynolds, the District Court is
obligated to conduct a Franks hearing as a result of this Court’s March 18th opinion and
in accordance with Fed. R. Crim. P. 52(b).
Mandamus is a drastic remedy available only in extraordinary cases, see In re Diet
Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005), as the petitioner must
demonstrate that he has “no other adequate means” to obtain the desired relief and a
“clear and indisputable” right to issuance of the writ. Madden v. Myers, 102 F.3d 74, 79
(3d Cir. 1996). We do not hesitate to conclude that Reynolds has failed to demonstrate a
clear and indisputable right to the issuance of a mandamus petition ordering the District
Court to hold a Franks hearing.
Contrary to Reynolds’ assertion, there is nothing in our opinion affirming the
Judgment and Commitment which lends support to his contention. Though we stated that
2
We subsequently denied Reynolds’ motion to recall the mandate in an order
issued on September 14, 2010.
2
the factual question as to whether a misstatement of fact set forth in an affidavit for
probable cause was intentionally or recklessly made is one to be determined by the
District Court in the first instance, we also noted that “Reynolds did not assert the
existence of a specific misstatement of fact in the District Court. Thus, there [was] no
factual determination by the District Court to review.” United States v. Reynolds, 374 F.
App’x. 356, 360 (3d Cir. 2010). We further held that Reynolds’ assertion that the master
affidavit did not establish probable cause was unpersuasive. Id.
Reynolds’ reliance on Fed. R. Crim. P. 52(b) fares no better. While we do not
intend to comment on the timeliness of his filing, we note that the District Court docket
reflects that Reynolds only recently filed a “Motion Under Rule 33 for New Trial or
Motion Under Rule 52(b), Plain Error” on December 22, 2010. Although an appellate
court may issue a writ of mandamus on the ground that undue delay is tantamount to a
failure to exercise jurisdiction, Madden, 102 F.3d at 79, the manner in which a court
controls its docket is discretionary. In re Fine Paper Antitrust Litig., 685 F.2d 810, 817
(3d Cir. 1982). There certainly has been no undue delay on the part of the District Court
in considering Reynolds’ request for relief under Rules 33 and/or 52(b). Moreover,
Reynolds has shown no clear and indisputable right to a mandamus petition compelling
the District Court to hold a Franks hearing under Rule 52(b), where that court has yet to
consider his motion seeking such a hearing. Additionally, any challenge to the District
Court’s disposition of this post-judgment motion will be available in the form of an
appeal to this Court once a decision has been issued.
3
We note that Reynolds also appears to take issue with the manner in which his
“Hazel-Atlas” Motion has been docketed by the District Court. A review of the District
Court docket reveals that the motion was filed in the underlying action on November 15,
2010. The government’s opposition to the motion was received two weeks later. The
motion thus appears ripe for disposition. Though it is unclear whether Reynolds is
seeking to compel the District Court to act on this motion as well, we likewise conclude
that there has been no undue delay on the part of the District Court in disposing of
petitioner’s motion. This is especially true considering the fact that Reynolds continues
to bombard the District Court with pro se filings. Furthermore, we once again state that
any challenge Reynolds wishes to raise as to the construction ultimately afforded his
motion by the District Court can be presented on appeal from any unfavorable decision.
For the foregoing reasons, the petition for a writ of mandamus will be denied.
4