*AMENDED (March 8, 2011)
HLD-108 (February 28, 2011)                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 11-1492
                                      ___________

                             In re: JOSE RODRIGUEZ,
                                                Petitioner
                      ____________________________________

                      On a Petition for Writ of Mandamus from the
                United States District Court for the District of New Jersey
                        (Related to D.N.J. Civ. No. 10-cv-00949)
                      ____________________________________

                  Submitted Pursuant to Rule 21, Fed. R. App. P.
                               February 28, 2011
       Before: McKEE, Chief Judge, and ALDISERT and WEIS, Circuit Judges

                              Opinion filed: April 21, 2011
                                      _________

                                       OPINION
                                       _________

PER CURIAM.

             On February 16, 2011, Jose Rodriguez filed this pro se mandamus petition

pursuant to 28 U.S.C. § 1651, seeking an order that the District Court be compelled to act

upon his pending motion to vacate his federal drug conviction. See United States v.

Hardwick, 

(3d Cir. 2008) (affirming Rodriguez’s conviction on direct

appeal). The mandamus petition will be denied without prejudice.
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              Mandamus is a drastic remedy available only in the most extraordinary of

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

, 378 (3d Cir. 2005). It

is not a substitute for an appeal. In re Chambers Dev. Co., 

, 226 (3d Cir.

1998). To demonstrate that mandamus is appropriate, a petitioner must establish that he

has “no other adequate means” to obtain the relief and that he has a “clear and

indisputable” right to issuance of the writ. Madden v. Myers, 

, 79 (3d Cir.

1996).

              In his petition, Rodriguez “contend[s] that he is lawfully mandated to have

his [§ 2255 motion] . . . responded to in a timely fashion.” He is incorrect. 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). Indeed, given the

discretionary nature of docket management, there can be no “clear and indisputable” right

to have the district court handle a case on its docket in a certain manner. See Allied

Chem. Corp. v. Daiflon, Inc., 

, 36 (1980).

              Nevertheless, mandamus may be warranted where a district court’s delay is

tantamount to a failure to exercise jurisdiction. 

. This case,

however, does not present such a situation. Rodriguez filed his motion to vacate, under

28 U.S.C. § 2255, on February 17, 2010. The Government filed its response to the

motion on September 21, 2010, and Rodriguez filed a “traverse in rebuttal” on October 8,

2010. Roughly five months have passed since then, without further action on the District

                                              2
Court’s docket. This delay “does not yet rise to the level of a denial of due process.” 

the utmost confidence that the District Court will rule on Rodriguez’s § 2255

motion in due course.1




       1
         Rodriguez’s motion under Fed. R. App. P., Rule 42(b) to voluntary dismiss the
appeal is denied. We appreciate Rodriguez’s concern for his effect on the expenditure of
judicial resources, and further note that Rodriguez has not been, nor will he be,
prejudiced for having filed this mandamus petition.
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