Opinion
No. 11-1492.
Submitted Pursuant to Rule 21, Fed. R.App. P. February 28, 2011. *Amended March 8, 2011.
Opinion filed: April 21, 2011.
On a Petition for Writ of Mandamus from the United States District Court for the District of New Jersey, (Related to D.N.J. Civ. No. 10-cv-00949).
Jose Rodriguez, Manchester FCI, Manchester, KY, pro se.
U.S. Attorney Camden, Office of United States Attorney, Camden, NJ, for Robert B. Kugler.
Before: McKEE, Chief Judge, and ALDISERT and WEIS, Circuit Judges.
OPINION
On February 16, 2011, Jose Rodriguez filed this pro se mandamus petition pursuant to 28 U.S.C. § 1651, seeking an order that the District Court be compelled to act upon his pending motion to vacate his federal drug conviction. See United States v. Hardwick, 544 F.3d 565 (3d Cir. 2008) (affirming Rodriguez's conviction on direct appeal). The mandamus petition will be denied without prejudice.
Mandamus is a drastic remedy available only in the most extraordinary of circumstances. In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). It is not a substitute for an appeal. In re Chambers Dev. Co., 148 F.3d 214, 226 (3d Cir. 1998). To demonstrate that mandamus is appropriate, a petitioner must establish that he has "no other adequate means" to obtain the relief and that he has a "clear and indisputable" right to issuance of the writ. Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996).
In his petition, Rodriguez "contend[s] that he is lawfully mandated to have his [§ 2255 motion] . . . responded to in a timely fashion." He is incorrect. As a general rule, the manner in which a court disposes of cases on its docket is within its discretion. See In re Fine Paper Anti-trust Litig., 685 F.2d 810, 817 (3d Cir. 1982). Indeed, given the discretionary nature of docket management, there can be no "clear and indisputable" right to have the district court handle a case on its docket in a certain manner. See Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980).
Nevertheless, mandamus may be warranted where a district court's delay is tantamount to a failure to exercise jurisdiction. Madden, 102 F.3d at 79. This case, however, does not present such a situation. Rodriguez filed his motion to vacate, under 28 U.S.C. § 2255, on February 17, 2010. The Government filed its response to the motion on September 21, 2010, and Rodriguez filed a "traverse in rebuttal" on October 8, 2010. Roughly five months have passed since then, without further action on the District Court's docket. This delay "does not yet rise to the level of a denial of due process." Id. We have the utmost confidence that the District Court will rule on Rodriguez's § 2255 motion in due course.
Rodriguez's motion under Fed.R.App.P., Rule 42(b) to voluntary dismiss the appeal is denied. We appreciate Rodriguez's concern for his effect on the expenditure of judicial resources, and further note that Rodriguez has not been, nor will he be, prejudiced for having filed this mandamus petition.