Opinion
23-2122
12-07-2023
In re: ORIN KRISTICH, Petitioner.
D.C. Nos. 1:22-CV-00569-WJ-KRS & 1:18-CR-02635-WJ-KRS-1, D. N.M.
Before BACHARACH, EID, and ROSSMAN, Circuit Judges.
ORDER
Orin Kristich petitions for a writ of mandamus directed to the district court hearing his pending 28 U.S.C. § 2255 proceedings. He asks us to direct the district court (1) to label in a specific way any mail it sends to him and (2) to rule on pending motions.
Mr. Kristich represents himself, so we construe his filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
A writ of mandamus is a drastic remedy, available only in extraordinary circumstances. In re Cooper Tire &Rubber Co., 568 F.3d 1180, 1186 (10th Cir. 2009). We will issue a writ of mandamus only if three conditions exist:
1. The petitioner has no other way to obtain relief.
2. The petitioner has shown a right to the writ that is clear and indisputable.
3. We have determined, using our discretion, that the circumstances warrant issuing the writ.See id. at 1187. With these principles in mind, we turn to Mr. Kristich's petition.
Labeling mail. Mr. Kristich is in prison. Early in the underlying proceedings, mail from the district court to him came back undeliverable. Mr. Kristich then asked the district court to label future envelopes as legal mail to be opened only in his presence. The district court apparently has not complied with that request. Mr. Kristich now asks us to direct the district court to label his mail as he requested. But he fails to identify authority requiring the district court to label his mail in any specific way. In short, Mr. Kristich has not shown that his right to relief on this point is clear and indisputable.
We take judicial notice of the docket in the underlying proceedings. See United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007).
Pending motions. In April 2023, Mr. Kristich moved for appointed counsel. In May 2023, he moved for clarification of an earlier order. The motions remain pending, and Mr. Kristich asks us to direct the district court to rule on them. But we are not persuaded that there has been an impermissible delay. Cf. Johnson v. Rogers, 917 F.2d 1283, 1284 (10th Cir. 1990) (granting mandamus relief when a habeas petition had been "at issue for more than fourteen months without resolution"). And the district court's docket shows consistent activity in the underlying proceedings, so we do not worry that the district court has neglected Mr. Kristich's case. Under these circumstances, mandamus relief is not warranted.
In August 2023, the government responded to Mr. Kristich's § 2255 motion. Mr. Kristich has twice moved to extend the deadline to reply. The reply is now due in January 2024.
We deny Mr. Kristich's petition for a writ of mandamus. We grant his motion to proceed without prepaying costs or fees.