2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

8-29-2011 

# I n R e: Theo dor e Y

oun g , S r

. P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 11-3126

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2011

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2011 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" I n R e: The odor e Y

oun g , S r . " (2011). 2011 D e cisio n s . P a pe r 622. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2011/6221 

### BLD

- 271 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 1

- 3126

___________ IN RE: THEODORE YOUNG, SR. , Petitioner

____________________________________ On a Petition for Writ of Mandamus fro m the United States District Court for the Eastern District of Pennsylvania (Related to E.D. Pa. Crim. No. 05

- cr
- 0056

- 16 )

____________________________________ Submitted Pursuant to Rule 21, Fed. R. App. P. August 18, 2011 Before: SLOVITER, JORDAN and GREENAWAY, JR. , Circuit Judges (Opinion filed : August 29, 2011 )

_________ OPINION

_________ PER CURIAM Theodore Young, Sr

. , petitions this Court for a writ of mandamus reassigning his motion to vacate his sentence and related motions to a new district judge , a nd ordering that judge to “rule expeditiously” on those motions. We will deny Young’s petition without prejudice

. In July 2010, Young filed a pro se motion to vacate his sentence, pursuant to 28 U.S.C. § 2255. He also filed (1) a motion for return of p roperty; (2) a motion for2 

### appointment of counsel; (3) a motion for bail pending dis position of his § 2255 motion; (4) a motion to strike the government’s sur

- reply regarding the motion for return of property; and (5) a motion to strike the government’s res ponse to his § 2255 motion as untimely. In the months that followed, the District Court denied Young’s motions for counsel, bail, and return of property, as well as his motion s to strike. 1 

### In April 2011, Young filed a motion, pursuant to Rule 5(c) of t he Rules Governing § 2255 Cases, for a complete copy of the transcript of his voir dire proceedings in light of his claim that trial counsel rendered ineffective assistance in connection with the jury selection process. He subsequently filed a second moti on urging the District Court to rule on his request for transcripts

. On August 8, 2011, Young filed a petition for a writ of mandamus asking us to reassign his outstanding motion s to a new district judge for prompt resolution

. Mandamus is a “drastic and extraordinary remedy” available only in “exceptional
circumstances.” Cheney v. U.S. Dist. Court for the Dist. of Columbia , 542 U.S. 367, 380 (2004) (citation omitted). A petitioner seeking mandamus “ must show that the right to
issuance is clear and indi sputable .” See Madden v. Myers , 102 F.3d 74, 79 (3d Cir. 1996)

. Although matters of docket control are generally left to the court’s discretion, s ee In re Fine Paper Antitrust Litig. , 685 F.2d 810, 817 (3d Cir. 1982) , mandamus may be
warranted when a dis trict court’s delay equates to a failure to exercise jurisdiction. See

1 

### Young appealed the District Court’s denial of his motion for bail and his motion for return of property to this Court. We have since affirmed both decisions.3 

### Madden v. Myers , 102 F.3d 74, 79 (3d Cir. 1996). Young’ s § 2255 motion was fully briefed as of October 25, 2010. Although the District Court has not yet ruled on t hat motion , it exe rcised jurisdiction through
December 10, 2010, by ruling on other motions . That there has been no action for eight
months may be troubling, but it does not yet rise to a level justifying our intervention

. See Madden , 102 F.3d at 79 (eight months of inact ion insufficient to compel mandamus). Likewise, the District Court’s failure to rule on Young’s request for transcripts, which has been outstanding for four months, is not tanta mount to a failure to exercise jurisdiction

. We are confident that the Distric t Court will rule on Young’s pending § 2255
motion and his motions for transcripts without any further delay. Accordingly, we will deny Young’s mandamus petition without prejudice to his right to seek mandamus relief should the District Court fail to expe ditiously resolve those motions. 2

2 

### In his motions for transcripts, Young indicates that he in tends to file a motion for summary judgment. While we expect the District Court to resolve Young’s motions for transcripts as soon as possible, we understand that the filing of additional motions might further delay final resolution of the § 2255 motion.