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- 270 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 12

- 3078

___________ IN RE: CHARLES PALADINO , Petitioner

____________________________________ On a Petition for Writ of Mandamus from the United States Distri ct Court for the Eastern District of Pennsylvania (Related to E.D. Pa. No. 11

- cv - 07470 )

____________________________________ Submitted Pursuant to Rule 21, Fed. R. App. P. August 30, 2012 Before: AMBRO, JORDAN AND VANASKIE , Circuit Judges (Opinion filed : September 6 , 2012 )

_________ OPINION

_________ PER CURIAM Charles Paladino petitions for a writ of mandamus to compel the United States District Court for the Eastern District of Pennsylvania to act on his request for the production of documents in the proceedings on hi s petition for a writ of habeas corpus

. We will deny the petition for a writ of mandamus

. I. In his habeas petition pursuant to 28 U.S.C. § 2254 , Paladino challeng es his 2008 conviction for robbery, robbery of a motor vehicle, conspiracy, and possession o f the2 instruments of crime in connection with the February 2006 robbery of a taxi cab. The District Court referred Paladino’s petition to a Magistrate Judge

. T he Magistrate Judge originally recommended that Paladino’s petition be dismissed without prejud ice because it included both exhausted and unexhausted claims . O f the numerous claims asserted in Paladino’s petition, the only ones the Magistrate Judge found that he had exhausted were (1) his challenge to the sufficiency of the evidence, and (2) his cl aim that his sentence was illegal because the sentences for robbery and robbery of an automobile should have merged. Paladino filed objections to the Magistrate Judge’s Report and Recommendation ( R&R ) in which he indicated that he wanted to withdraw his u nexhausted claims and
pro ceed only with the exhausted claims . The District Court approved and adopted the R&R in part. I n light of Paladino’s response , the District Court concluded that , rather than dismissing the petition without prejudice, the petition should be returned to the Magistrate Judge for review of the exhausted claims. The Magistrate Judge then ordered the respondents to file a supplement al response to the petition. The time for them to do so was extended to September 17, 2012. On March 2 9, 2012

— around the same time that he filed his response to the Magistrate Judge’s original R&R, but before the District Court had issued its order referring the matter back to the Magistrate Judge

— Paladino filed a Motion for Production of Documents. In th at motion, he request ed that the District Court order the respondents to produce various tax f orms and a warehouse order for the period 2006 through 2012. Paladino also filed a motion to compel the production of those documents3 on May 11 , 2012. He conten ds that neither the District Court nor the respondents have acted upon either his original document request or his subsequent motion to compel

. He now requests that we issue a writ of mandamus requiring the District Court to take action

. II. Mandamus is a drastic remedy available only in the most extraordinary of circumstances. Kerr v. U.S. Dist. Ct. , 426 U.S. 394, 402 (1976). It “ has traditionally been available to a court of appeals only ‘to confine an inferior court to a lawful exercise of its prescri bed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’” Madden v. Myers , 102 F.3d 74, 77 n.3 ( 3d Cir. 1996) (citations omitted). Such action is appropriate only where (1) the petitioner has no other adequate means to ob tain the relief sought; (2) the right to the issuance of the writ is clear and indisputable; and (3)

we are satisfied in the exercise of our discretion that mandamus is appropriate under the circumstances. In re Diet Drugs Prods. Liab. Litig. We have explained that t he manner in which a District Court disposes of the cases on its docket and conducts discovery is committed to its sound discretion. , 418 F.3d 37 2, 378

- 79 (3d Cir. 2005).

In re Fine Paper Antitrust Litig. , 685 F.2d 810, 817

- 18 (3d Cir. 1982). However, there are instances where “undue delay is tantamount to a failure to exercise jurisdiction,” which may warrant mandamus relief. Madden , 102 F.3d at 79. So far it appears that the Magistrate Judge and the District Court have been diligently hand ling Paladino’s habeas petition.
We do not find that the short delay so far in resolving Paladino’s discovery motion rises4 to the level of a denial of due process warranting the drastic remedy of mandamus

. See id

. Paladino also suggests that the District Court has a simple duty to authorize his discovery. C ontrary to his assertions concerning the broad scope of discovery under the Federal Rules of Civil Procedure, though, “ [a] habeas petitioner, unlike the usual civil litig ant in fed eral court, is not entitled to discovery as a matter of ordinary course. ” (addressing five

- month delay).

Bracy v. Gramley , 520 U.S. 899, 904 (1997). Rather, Rule 6 of the Rules Governing § 2254 Cases provides that a judge may, upon a showing of good cause, permit discovery. Under Rule 6(b), the “party requesting discovery must provide reasons for the request.” Ultimately, “ [t] he burden rests upon the petitioner to demonstrate that the sought

- after information is pertinent and that there is good cause for its production. ” W illiams v. Beard

III. , 637 F.3d 195, 209 (3d Cir. 2011)

. Although w e observe that it is not readily apparent how Paladino construes the requested documents as being pertinent to his habeas petition , we will leave it to the District Court to determine in the fi rst instance whether Paladino has satisfied the standard for obtaining discovery under Rule 6(b) . We are fully confident it will do so without undue delay.

In sum , because th e extraordinary circumstances justifying a writ of mandamus are absent , we will deny the petition.