DLD

- 196 NOT PRECEDENTIAL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

___________ No. 19

- 2055

___________
IN RE: ARTHUR D’AMARIO, III , Petitioner

____________________________________ On a Petition for Writ of Mandamus f rom the Uni ted States District Court for the District of New Jersey (Related to D.N.J. Civ. No. 1

- 18

- cv - 10552 )

____________________________________ Submitted Pursuant to Rule 21, Fed. R. App. P. May 23, 2019 Before: JORDAN, GREENAWAY, JR. and NYGAARD, Ci rcuit Judge s (Opinion filed : August 22, 2019 )

_________ OPINION *

_________ PER CURIAM Arthur D’Amario, III, petitions for a writ of mandamus. We will deny his petition. D’Amario has a long history of unsuccessfully challenging his criminal convictions, including two conviction s for threatening federal judge s in violation of 18 U.S.C. § 115(a)(1)(B). D’Amario’s challenges have continued even though he completed

* This disposition is not an opinion of the full Court and pursuant to I. O.P. 5.7 does not constitute binding precedent.2 his most recent sentence in 2014

. In 2015, for example, he filed both (1) an application under 28 U.S.C. § 2244 for l eave to file a successive motion under 28 U.S.C. § 22 5 5 , and (2) a petition for a writ of error coram nobis and/or a writ of audita querela. He argued, among other things, that his conviction s under § 115(a)(1)(B) are invalid following Elonis v . United St ates , 135 S. Ct. 2001 (2015). We denied D’Amario’s § 2244 application , in part because he no longer was in custody . (C.A. No. 15

- 3462, Nov. 17, 2015). We also a ffirmed the denial of his coram nobis/audita querela petition. See D’Amario v. U. S. Att’y Ge n. , 668 F. App’x 406 , 407 (3d Cir. 2016) (per curiam). D’Amario later raised his challenge under Elonis again in a habeas petition under 28 U.S.C. § 2241. That petition remains pending in the District Court. Our Chief Judge designated the Hon orable Paul S. Diamond to preside over that petition . D’Amario , who also has a long history of unsuccessfully seeking Judge Diamond’s disqualification , 1 filed below a motion for assignment to a different District Judge. That motion remains pending as wel l. D’Amario now has filed another mandamus petition asking us to (1) remove Judge Diamond from this case, and (2) order a replacement judge to adjudicate his habeas petition “forthwith.” We deny those requests. Mandamus is an extraordinary remedy that we have the d iscretion to grant only when, among other things, “there is no other adequate means to obtain the desired relief.” In re Kensington Int’l Ltd. , 353 F.3d 211,

1 See, e.g. , In re D’Amario , 570 F. App’x 111, 111 (3d Cir. 2014) (per curiam) (denying man damus petit ion); In re D’Amario , 442 F. App’x 657, 659 (3d Cir. 2011) (per curiam)3 219 (3d Cir. 2003) (quotation marks omitted). Thus, we have held that “[m]andamus is a
proper me ans for this court to review a district court judge’s refusal to recuse from a case pursuant to 28 U.S.C. § 455(a).” Id. at 219 (emphasis added) (quotation marks omitted). When the District Judge has yet to refuse a request for recusal, howeve r, it canno t be said that a petitioner has no recourse but to seek the extraordinary remedy of mandamus from this Court. See id. at 223

- 24. In this case, D’Amario’s motion in the District Court effectively seeks Judge Diamond’s recusal, and it remains pen ding before Judge D iamond. Thus, review of this issue by mandamus is premature. In so ruling , we do not suggest that review by mandamus would be appropriate if Judge Diamond were to deny D’Amario’s motion. To the contrary, the arguments for recusal that D’Amario r aises in his mandamus petition appear little different than those we repeatedly have rejected. Nevertheless, it would be premature for us to decide that issue now and we decline to do so. D’Amario does not expressly request an order requiring J udge Diamon d to rule on his motion . E ven if his mandamus petition could be construed to request that relief, however, we would deny it. D’Amario filed his motion for reassignment on January 15,
201 9 . Although some time has passed since then, any delay i n ruling on the motion does not yet amount to a failure to exercise jurisdiction. See Madden v. Myers , 102 F.3d 74, 79 (3d Cir. 1996). We are confident that Judge Diamond will rule on D’Amario’s motion in due course. Finally, without any basis to order Judge Diamo nd’s disqualification,

(same); In re D’Amario , 367 F. Ap p’x 355, 356 (3d Cir. 2010) (per curiam) (same).4 there is no basis to order a replacement judge to rule on D’Amario’s habeas petition forthwith. For these reasons , we will deny D’Amario’s mandamus petition.