BLD-143 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-1236
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IN RE: CHARLES E. SMITH,
Petitioner
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On a Petition for Writ of Mandamus from the
United States District Court for the Middle District of Pennsylvania
(Related to M.D. Pa. Civ. No. 1-17-cv-00427)
District Judge: Honorable Yvette Kane
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Submitted Pursuant to Rule 21, Fed. R. App. P.
March 9, 2018
Before: RESTREPO, BIBAS and NYGAARD, Circuit Judges
(Opinion filed: March 14, 2018)
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OPINION*
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PER CURIAM
In March 2017, Charles E. Smith filed a petition pursuant to 28 U.S.C. § 2254 in
the United States District Court for the Middle District of Pennsylvania. By order and
memorandum entered on April 28, 2017, the District Court dismissed Smith’s § 2254
petition without prejudice because there were ongoing state court proceedings, and
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
declined to issue a certificate of appealability. On May 17, 2017, Smith filed a motion
for reconsideration of the District Court’s April 28, 2017 order.1 On January 17, 2018,
Smith filed an addendum to his motion for reconsideration, further expanding on his
habeas claims. Smith now seeks a writ of mandamus directing the District Court to act
on his motion for reconsideration and addendum as the motion for reconsideration was
“filed with the District Court over 8 months ago.” Smith has also filed motions to
proceed in forma pauperis and to be relieved from the obligation to supply an inmate
account statement.
Smith’s motions to proceed in forma pauperis and to be relieved from the
obligation to supply an inmate account statement are granted. For the reasons set forth
below, we will deny the petition for mandamus.
Mandamus is a drastic remedy available in only the most extraordinary
circumstances. In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005).
“A petitioner seeking the issuance of a writ of mandamus 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). As a general rule,
“matters of docket control” are within the discretion of the District Court. In re Fine
Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982). Nonetheless, an appellate court
may issue a writ of mandamus when an undue delay in adjudication is “tantamount to a
1
On July 29, 2017, Smith filed a notice of appeal. The appeal is stayed pending
disposition of his motion for reconsideration in the District Court.
2
failure to exercise jurisdiction.” Madden, 102 F.3d at 79. Smith cannot satisfy this
standard.
While an eight-month delay in the resolution of Smith’s motion for
reconsideration may cause some concerns, we do not believe that the delay in ruling on
motion is so lengthy that it is “tantamount to a failure to exercise jurisdiction.” See id.
(holding that delay of over five months was “of concern,” though not yet a denial of due
process); see also Johnson v. Rogers, 917 F.2d 1283, 1285 (10th Cir. 1990) (holding that
mandamus relief was appropriate after a delay of fourteen months due only to docket
congestion). Moreover, in light of the fact that Smith has now filed an addendum for the
District Court’s review, we are confident that the District Court will rule on the motion
for reconsideration and addendum without undue delay.
Accordingly, we will deny Smith’s petition, but without prejudice to his filing
another in the event the District Court does not rule on his motion within 60 days.
3