DLD-146                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 11-1509
                                       ___________

                           IN RE: MARCUS L. WALLACE,
                                                 Petitioner
                       ____________________________________

                      On a Petition for Writ 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, Pennsylvania, 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 Report
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. In 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 filed this

pro se mandamus petition, as well as a motion in support thereof.

       It is not entirely clear from Wallace’s petition what exactly he seeks to compel the

District Court to rule on. In the petition, Wallace asserts that the forensic scientist who

analyzed the DNA evidence in his case was misidentified by a witness. Accordingly,

Wallace argues, he is entitled to have the charges against him dismissed. Wallace

challenged the identification of the forensic scientist in some of his pre-judgment motions

related to his habeas petition, 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 raised in those motions, his request is moot because the District Court already

ruled on the claims.

       Wallace also raised similar issues related to the forensic scientist’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 District Court to rule on

his petition for review, we conclude that mandamus is not appropriate.


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       Mandamus is a drastic remedy available in only the most extraordinary

circumstances. In re Diet Drugs Prods. Liab. Litig., 

, 378 (3d Cir. 2005).

“A petitioner seeking the issuance of a writ of mandamus must 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, 

, 79 (3d Cir. 1996). In addition, as a

general rule, the manner in which a court disposes of cases on its docket is within its

discretion. See In re Fine Paper Antitrust Litig., 

, 817 (3d Cir. 1982).

       Nonetheless, mandamus may be warranted when a district court’s “undue delay is

tantamount to a failure to exercise jurisdiction.” 

. 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 petition for review and his mandamus petition, which he filed

on February 28, 2011. Moreover, considering that Wallace’s state case is still ongoing

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 level of a denial of due process.” 

extent that Wallace asks us to compel the 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 obtain the desired relief.” 

Court still
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has time in which to rule on the petition for review, and if and when the District Court

denies it, Wallace is free to challenge such action via direct appeal. See In re Chambers

Dev. Co., 

, 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 dismissed.

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.




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