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

7-20-2011 

# I n R e: M a r c u s W

al l a ce

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 . 11-1509

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: M a r c us W

al l a c e " (2011). 2011 D e cisio n s . P a pe r 840. 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_2011/840DLD
- 146 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 1

- 1509

___________ IN RE: MARCUS L. WALLACE , Petitioner

____________________________________ On a Petition for Wr it of Mandamus from the United States District Court for the Middle District of Pennsylvania (Related to M.D. Pa. Civ. No. 3

- 10

- cv - 01309)

____________________________________ Submitted Pursuant to Rule 21, Fed. R. App. P. March 24, 2011 Before: BARRY, FISHER AND ROTH , Circuit Judges (Opinion filed : July 20, 2011 )

_________ OPINION

_________ PER CURIAM Petitioner, Marcus Wallace, is currently awaiting trial in the Court of Common Pleas of Franklin County, Pennsy lvania, on charges of first and second degree murder, aggravated assault, criminal mischief, and related charges. In June 2010, Wallace filed a pro se habeas petition under 28 U.S.C. § 2254 in the District Court. After filing his habeas petition, Wallace also filed various motions in the District Court related to pretrial proceedings in the Court of Common Pleas. The Magistrate Judge issued a Report2 recommending that Wallace’s habeas petition be dismissed because he had not exhausted state court remedies . After rejecting Wallace’s objections, the District Court adopted the Magistrate Judge’s Report, and also intimated that it could properly invoke Younger abstention. Wallace then sought a certificate of appealability from this Court, which we
denied

. I n addition, Wallace filed various post

- judgment motions in the District Court, which the District Court has not yet ruled on . On February 28, 2011, Wallace file d this pro se mandamus petition , as well as a motion in support thereof. It is not entirely cle ar from Wallace’s petition what exactly he seeks to compel the District Court to rule on. In the petition , Wallace asserts that th e forensic scientist who analyzed the DNA evidence in his case was misidentified by a wit ness. A ccordingly , Wallace argues, he i s entitled to have the charges against him dismissed. Wallace challenged the identification of t he forensic scientist in some of his pre - judgment motions related to his habeas petitio n, and the District Court dismissed those motions without prejudice. To the extent that Wallace seeks to compel the District Court to rule on any claims raise d in those motions, his request is moot because the District Court already ruled on the claims. Wallace also rais ed similar issues related to the forensic scientis t ’ s identification in his “petition for review,” which he filed after the District Court dismissed Wallace’ s habeas petition

. To the extent that Wallace seeks to compel the Distri ct Court to rule on his petition for review , we conclude that mandamus is no t appropriate.3 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 m ust 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). In addition, as a general rule, the manner in which a court disposes of c ases on its docket is within its discretion. See In re Fine Paper Antitrust Litig. , 685 F.2d 810, 817 (3d Cir. 1982). Nonetheless, mandamus may be warranted when a district court’s “undue delay is tantamount to a failure to exercise jurisdiction.” Madden , 102 F.3d at 79. The District Court’s delay in this case, however, does not meet that standard. Wallace filed his petition for review on January 12, 2011. Only about a month and a half passed between the time Wallace filed his p etition for review and his mandamus petition , which he filed on February 28, 2011. Moreover, considering that Wallace’s state case is still ongo ing and that the District Court already dismissed Wallace’s pre

- judgment motions asserting arguments related to those in his petition for review, it is understandable that the District Court may be proceeding with caution. We cannot say that the delay in adjudicating Wallace’s petition for review is “ tantamount to a failure to exercise jurisdiction” or “rise[s] to the le vel of a denial of due process.” Id. To the extent that Wallace asks us to compel th e District Court to grant his post

judgment petition for review (rather than simply rule on it), he has not demonstrated that he has “ no other adequate means to ob tain the desired relief

. ” Id. The District Court still4 has time i n which to rule on the petition for review , and i f and when the District Court deni es it, Wallace is free to challenge such action via direct appeal

. See In re Chambers
Dev. Co. , 148 F.3d 214, 223 (3d Cir. 1998) (“[A] writ of mandamus should not be issued where relief may be obtained through an ordinary appeal.”). For the foregoing reasons, the petition for a writ of mandamus will be d ismissed

. In reaching our decision, we also considered Wallace’s motion accompanying his petition for a writ of mandamus, and now dismiss the motion along with his petition.