NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 24-1129

___________

IN RE: CALEB L. MCGILLVARY,

Petitioner

____________________________________

On a Petition for Writ of Mandamus from the

United States District Court for the District of New Jersey

(Related to 1:22-cv-04185)

____________________________________

Submitted Pursuant to Rule 21, Fed. R. App. P.

Before: CHAGARES, Chief Judge, SHWARTZ and RESTREPO, Circuit Judges

(Opinion filed: August 23, 2024)

_________

OPINION*

_________

PER CURIAM

On January 19, 2024, Caleb McGillvary filed a pro se petition for a writ of 

mandamus challenging the District Court’s indefinite administrative closure of his 

otherwise ripe habeas petition.1 In his mandamus petition, as well as a supplemental 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.

1 McGillvary’s federal habeas petition was filed in June 2022 and was ripe for disposition 

in May 2023. In August 2023, the petition was reassigned to District Judge Christine 

O’Hearn. In November 2023, McGillvary filed a separate civil action in which he named 
2

petition, see 3d Cir. ECF No. 8, and numerous other filings in this Court, McGillvary 

seeks the recusal of Judge O’Hearn from the habeas matter and reassignment of the case 

to another district judge. He also seeks the prioritization and prompt resolution of his 

habeas petition. 

We will deny the petition for a writ of mandamus. First, to the extent that 

McGillvary seeks the recusal of Judge O’Hearn and reassignment of his habeas petition, 

an Order filed on July 26, 2024, reassigned the pending habeas petition, pursuant to 28 

U.S.C. § 292(b), to a district judge outside the District of New Jersey. Accordingly, his 

request for such relief is moot. See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 

698-99 (3d Cir. 1996) (“If developments occur during the course of adjudication that ... 

prevent a court from being able to grant the requested relief, the case must be dismissed 

as moot.”). 

Second, a writ of mandamus will issue only in extraordinary circumstances. See

Sporck v. Peil, 759 F.2d 312, 314 (3d Cir. 1985). As a precondition to the issuance of the 

writ, the petitioner must establish that there is no alternative remedy or other adequate 

means to obtain the desired relief, and the petitioner must demonstrate a clear and 

indisputable right to the relief sought. Kerr v. U.S. Dist. Court, 426 U.S. 394, 403 

(1976). As a general rule, the manner in which a court disposes of cases on its docket is 

multiple federal judges and others, including Judge O’Hearn, as defendants. McGillvary 

then moved to recuse Judge O’Hearn from presiding over his habeas petition based on 

her status as a defendant in the separate civil action. See D.Ct. ECF No. 32. On January 

9, 2024, rather than ruling on the recusal motion, Judge O’Hearn sua sponte 

administratively terminated McGillvary’s ripe habeas action “pending resolution of” the 

separate civil action. D.Ct. ECF No. 36 at 1-2. 
3

within its discretion. See In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 

1982). Nonetheless, mandamus may be warranted where a District Court’s “delay is 

tantamount to a failure to exercise jurisdiction.” Madden v. Myers, 102 F.3d 74, 79 (3d 

Cir. 1996). 

Here, while we recognize that McGillvary has faced a delay in the resolution of 

his pending habeas matter, his petition has been newly reassigned for disposition. We are 

confident that the newly assigned district judge will act on McGillvary’s petition within a 

reasonable time. Accordingly, we will deny the mandamus petition without prejudice to 

refiling if the petition is not decided within a reasonable time.2

2

In light of our disposition, McGillvary’s pending motions, see 3d Cir. ECF Nos. 5, 6, 7, 

9, 10, as well as any other pending requests, are denied.