HLD-002                                                          NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ____________

                                       No. 18-2828
                                      ____________

                             IN RE: FRANKLIN X. BAINES,
                                                      Petitioner

                          __________________________________

                        On a Petition for Writ of Mandamus from
                               the United States District Court
                          for the Eastern District of Pennsylvania
                       (Related to E.D. Pa Civ. No. 2-12-cv-05672)
                      District Judge: Honorable Joseph F. Leeson, Jr.
                        __________________________________

                    Submitted Pursuant to Rule 21, Fed. R. App. P.
                                  October 25, 2018
           Before: SMITH, Chief Judge, AMBRO, and ROTH, Circuit Judges

                             (Opinion filed: February 8, 2019)
                                     ____________

                                        OPINION*
                                      ____________


PER CURIAM

        Franklin Baines petitions for a writ of mandamus. For the reasons that follow, we

will deny the petition.




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Baines is a Pennsylvania state prisoner serving a life sentence with no chance for

parole for a murder he committed at the age of 16. As such, he has a right to be resentenced

in state court under Miller v. Alabama, 

(2012), and Montgomery v. Louisiana,

(2016). His Miller claim is presently pending before the Philadelphia Court

of Common Pleas in a timely petition under Pennsylvania’s Post Conviction Relief Act

(“PCRA”), 42 Pa. Cons. Stat. §§ 9541, et seq. Baines has also raised his Miller claim in a

habeas corpus petition, 28 U.S.C. § 2254, which is pending in the United States District

Court for the Eastern District of Pennsylvania.

       In an order dated March 24, 2017, the Magistrate Judge stayed federal proceedings

to allow Baines to exhaust his Miller claim in state court. Baines, who is proceeding pro

se in federal court, filed numerous motions seeking to lift the stay and to be excused from

the exhaustion requirement. In an order dated November 17, 2017 and filed on the civil

docket on November 20, 2017, the Magistrate Judge denied the motions and declined to

lift the stay. In the margin, the Magistrate Judge noted that state court proceedings are

moving forward without undue delay. Baines filed a notice of appeal from the Magistrate

Judge’s order in this Court on December 4, 2017. We dismissed the appeal for lack of

appellate jurisdiction, but directed the Clerk of the District Court to treat the notice of

appeal filed on December 4, 2017 (Docket Entry No. 56) as an appeal to the District Judge

pursuant to 28 U.S.C. § 636(b)(1)(A).

       Meanwhile, on November 20, 2017, Baines filed a petition for writ of mandamus in

this Court, his second such petition in the last two years. On December 19, 2017, we denied

the petition, see In re: Baines, 720 F. App’x 136, 139 (3d Cir. 2017), concluding that Baines

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had not shown a clear and indisputable right to mandamus relief from the habeas

exhaustion requirement. We noted that Baines had filed a notice of appeal from the

Magistrate Judge’s order refusing to lift the stay, and that the District Court had jurisdiction

to review and reconsider the Magistrate Judge’s order if Baines showed “that the ... order

is clearly erroneous or contrary to law,” 28 U.S.C. § 636(b)(1)(A).

       Baines then filed another original proceeding in this Court, titled “Application to

File a Rule 60(b) Motion.” Our Clerk treated the application as a mandamus petition,

because, in the main, Baines argued that “there is no justifiable reason for further delay in

[his] resentencing and Montgomery being announce[d] … 31 months ago … thereby

rendering this Court’s prior Order on Baines’ “second” request for mandamus relief

inapplicable ….” Petition, at 20.

       We will deny the petition. A writ of mandamus is an extreme remedy that is invoked

only in extraordinary situations. See Kerr v. United States Dist. Court, 

, 402

(1976). To justify its use, a petitioner must show both a clear and indisputable right to the

writ and that he has no other adequate means to obtain the relief desired. See Haines v.

Liggett Group Inc., 

, 89 (3d Cir. 1992). The management of its docket is

committed to the sound discretion of the District Court. In re: Fine Paper Antitrust

Litigation, 

, 817 (3d Cir. 1982). When a matter is discretionary, it cannot

typically be said that a litigant’s right is “clear and indisputable.” Allied Chem. Corp. v.

Daifon, Inc., 

, 35-36 (1980). Nevertheless, a writ of mandamus may be

warranted where undue delay is tantamount to a failure to exercise jurisdiction. Madden

v. Myers, 

, 79 (3d Cir. 1996).

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       On December 11, 2018, the District Judge ordered the District Attorney of

Philadelphia to “file a response updating this Court as to the status of Baines’s state

proceedings, advising the Court whether state court remedies have been exhausted, and, if

state court remedies have not been exhausted, showing cause why this Court should not

excuse the exhaustion requirement based on delay.” In the margin, the District Judge stated

that a decision on Baines’s motion to lift the stay would be made following receipt of the

District Attorney’s response. On December 31, 2018, the District Attorney submitted his

response, contending that there is no basis to excuse the exhaustion requirement (because

the delay in resentencing Baines under Miller is attributable to Baines’s appeal of a separate

and time-barred guilt phase PCRA claim). Because the District Attorney has responded,

the District Judge will now address Baines’s motion to lift the stay and his contention that

the exhaustion requirement should be excused, and thus mandamus relief is not warranted.

       For the foregoing reasons, we will deny the petition for writ of mandamus.

Petitioner’s motions for appointment of counsel are denied.




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