GLD-250                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 11-2612
                                       ___________

                           In re: KELLEY TROY COOLEY,
                                                       Petitioner
                       ____________________________________

                     On a Petition for Writ of Mandamus from the
          United States District Court for the Western District of Pennsylvania
                      (Related to W.D. Pa. Civ. No. 10-cv-00001)
                      ____________________________________

                     Submitted Pursuant to Rule 21, Fed. R. App. P.
                                    July 28, 2011

              Before: AMBRO, CHAGARES and COWEN, Circuit Judges

                             (Opinion filed August 09, 2011)
                                       _________

                                        OPINION
                                        _________

PER CURIAM

              Kelley Troy Cooley, after being sentenced in Pennsylvania state court to 3-

6 years‟ imprisonment, filed a petition for a writ of habeas corpus in the District Court on

January 8, 2010. The case became ripe for review on February 19, 2010, when the

parties‟ responses and state-court records were filed. In November 2010, approximately


nine months later, Cooley filed a motion in the District Court requesting his immediate

release from incarceration pending the disposition of his habeas petition. The Magistrate

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Judge denied Cooley‟s motion, and the District Court essentially adopted the Magistrate

Judge‟s decision on Cooley‟s subsequent appeal. Cooley filed several additional motions

in the District Court, including one seeking to compel the District Court to rule on his

habeas petition. On July 15, 2011, the Magistrate Judge entered a comprehensive Report

and Recommendation, recommending that the District Court deny Cooley‟s petition for a

writ of habeas corpus and inviting Cooley to file objections.

       On June 17, 2011, Cooley filed a petition for a writ of mandamus, requesting that

we order the District Court to rule on his habeas petition. Mandamus is an extraordinary

remedy. See Kerr v. U.S. Dist. Ct., 

, 402 (1976); In re Diet Drugs Prods.

Liab. Litig., 

, 378 (3d Cir. 2005). Within the discretion of the issuing court,

mandamus traditionally may be “used . . . only „to confine an inferior court to a lawful

exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its

duty to do so.‟” 

. A petitioner must show “„no other adequate

means to attain the desired relief, and . . . a right to the writ [that] is clear and

indisputable.‟” See In re Patenaude, 

, 141 (3d Cir. 2000) (citation omitted).

       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 where a district court‟s delay is

tantamount to a failure to exercise jurisdiction. See Madden v. Myers, 

, 79

(3d Cir. 1996). Cooley filed his habeas petition approximately eighteen months ago. The

District Court, therefore, has clearly delayed the resolution of his claims, which is

troubling. 

a five-month delay from the date the habeas petition was filed,

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and a three-month delay from the most recent motion filed, was a matter “of concern,”

though not yet a denial of due process); see also Johnson v. Rogers, 

, 1285

(10th Cir. 1990) (holding that after a delay of fourteen months due only to docket

congestion, “petitioner has established a clear and indisputable right to have his petition

expeditiously heard and decided, and [] has no alternative remedy.”)

       However, on July 15, 2011, approximately one month after Cooley petitioned for a

writ of mandamus, the Magistrate Judge entered her Report and Recommendation as to

Cooley‟s habeas petition. The Report analyzed all of Cooley‟s arguments challenging the

validity of his state-court conviction and invited him to file objections. Accordingly, a

writ of mandamus is unnecessary at the present time. Once Cooley‟s objections, if any,

are filed, we are confident that the District Court will rule on the matter expediently. For

these reasons, we will deny the petition for a writ of mandamus. Our denial is without

prejudice to the filing of another mandamus request in the event that the District Court

does not take action within 90 days from the entry of this judgment.




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