BLD-151 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 15-1518
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IN RE: JAMES COLE,
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 D.C. Crim. No. 2-91-cr-00570-002)
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Submitted Pursuant to Rule 21, Fed. R. App. P.
March 26, 2015
Before: AMBRO, JORDAN and KRAUSE, Circuit Judges
(Opinion filed: April 3, 2015)
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OPINION*
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PER CURIAM
James Cole, a federal prisoner proceeding pro se, petitions for a writ of mandamus
directing the District Court to rule on a motion “to reopen” his previously withdrawn
motion pursuant to 18 U.S.C. § 3582(c)(2). For the following reasons, we will deny the
mandamus petition.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
I.
Following a jury trial, Cole was convicted of conspiring to distribute and to
possess with the intent to distribute heroin and cocaine, engaging in a continuing criminal
enterprise, and four counts of possessing cocaine with intent to distribute; he was
sentenced on February 18, 1994, to life imprisonment. His conviction was affirmed on
appeal. He has since filed many unsuccessful motions for post-conviction relief under 28
U.S.C. § 2255.
In 2010, Coles filed a motion in the District Court to have his sentence reduced
under 18 U.S.C. § 3582(c)(2) and Amendments 505 and 536. Before the court
adjudicated his motion, however, Coles asked to withdraw it, stating that he wanted to
first obtain assistance of counsel. The District Court granted his request, dismissing the
motion without prejudice.
On November 30, 2013, Cole filed a motion “to reopen” his § 3582(c)(2) motion
from 2010, having abandoned his efforts to obtain counsel. On May 14, 2014, Coles
requested to again withdraw his § 3582(c)(2) motion, citing the court’s apparent inaction
on it. Before the District Court ruled on this request, on May 29, 2014, Coles filed a
motion titled “Motion to Disregard” the May 14, 2014 withdrawal motion; in it, he
indicated that he “will file [an] additional motion in this matter” and did not expressly
request that the court consider his earlier § 3582(c)(2) motion. He also filed that day a
motion to strike both the response the Government had filed opposing relief under
§ 3582(c)(2) as well as a supplement Cole had filed to his § 3582(c)(2) motion.
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In a June 11, 2014 order, the District Court construed these motions together to
indicate Cole’s desire to voluntarily withdraw the pre-existing § 3582(c)(2) motion, and
again dismissed it without prejudice. On July 17, 2014, Cole filed a motion “to re-open”
four documents identified only by docket number: his § 3582(c)(2) motion filed in 2010,
his November 2013 request “to reopen” that motion, and two related memoranda.
The District Court has not yet ruled on this most recent motion “to reopen.” The
District Court recently adjudicated several other motions by Cole, including dismissing a
§ 2255 motion on February 13, 2015. 1 On February 25, 2015, Cole filed a petition for a
writ of mandamus directing the District Court to rule on his § 3582(c)(2) motion.
II.
A writ of mandamus is a drastic remedy available only in extraordinary
circumstances. See In re Diet Drugs Prod. Liab. Litig., 418 F.3d 372, 378 (3d Cir.
2005). A petitioner seeking the writ “must have no other adequate means to obtain the
desired relief, and must show that the right to issuance is clear and indisputable.”
Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996), superseded in part on other grounds,
3d Cir. L.A.R. 24.1(c) (1997). Generally, a court’s management of its docket is
discretionary, see In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982), and
a litigant has no “clear and indisputable” right to receive a particular result from exercise
of that discretion. See Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (per
1
Cole’s separately docketed appeal from this dismissal order is currently pending before
this Court. See C.A. No. 15-1641.
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curiam). However, a writ of mandamus may issue where a district court’s “undue delay
is tantamount to a failure to exercise jurisdiction.” Madden, 102 F.3d at 79.
We recognize that approximately eight months have elapsed since Cole again
requested consideration of his § 3582(c)(2) motion. Standing alone, such a delay may
start to raise some concern. See id. (holding that district court delay for approximately
seven months was “of concern”). However, the District Court has adjudicated several
other motions by Cole in the interim, including his most recent § 2255 motion, which was
dismissed just two weeks before Cole filed this mandamus petition. Under these
circumstances, we do not think that the District Court’s delay in addressing Cole’s
§ 3582(c)(2) motion can be said to suggest a failure to exercise jurisdiction. See id.; see
also Hassine v. Zimmerman, 160 F.3d 941, 954 n.12 (3d Cir. 1998) (noting that district
court delay must be “extraordinary” to warrant mandamus relief).
Indeed, the intended result of Cole’s July 17, 2014 motion “to reopen” was
arguably less than clear. Moreover, Cole’s May 29, 2014 motion was ambiguous as to
whether he wished to stand on his 2010 § 3582(c)(2) submission or file an entirely new or
additional memorandum on the issue. It is possible that the District Court did not realize
that Cole had decided to finally commit to a particular § 3582(c)(2) motion until he
served the District Court with notice of this mandamus petition. Given its diligence in
addressing Cole’s other filings, we are confident that the District Court will promptly rule
on Cole’s § 3582(c)(2) motion now that Cole’s intent in this matter has been made clear.
Accordingly, we will deny Cole’s petition for a writ of mandamus.
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