Maurice Nichols v. , 697 F. App'x 117 ( 2017 )

BLD-293 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-1939
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IN RE: MAURICE NICHOLS,
Petitioner
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On a Petition for Writ of Mandamus from the
United States District Court for the Eastern District of Pennsylvania
(Related to E.D. Pa. No. 2-09-cr-00730-001)
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Submitted Pursuant to Rule 21, Fed. R. App. P.
June 29, 2017
Before: AMBRO, GREENAWAY, Jr., and SCIRICA, Circuit Judges
(Opinion filed: September 7, 2017)
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OPINION*
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PER CURIAM
Maurice Nichols, proceeding pro se, petitions for a writ of mandamus compelling
the United States District Court for the Eastern District of Pennsylvania to order the
Government to file a response to a motion he filed pursuant to Federal Rule of Civil
Procedure 60(b). For the reasons that follow, we will deny the mandamus petition.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
In 2010, Nichols pleaded guilty to possessing cocaine with the intent to distribute.
He was sentenced to 210 months in prison. We affirmed on direct appeal. United States
v. Nichols, 486 F. App’x 244 (3d Cir. 2012).
On July 23, 2013, the District Court denied Nichols’ motion to vacate sentence
pursuant to 28 U.S.C. § 2255. We denied Nichols’ subsequent request for a certificate of
appealability. On June 6, 2014, Nichols filed a Rule 60(b) motion seeking relief from the
District Court’s order denying his § 2255 motion. The District Court denied the motion
without a written opinion.1
On July 5, 2016, Nichols filed another Rule 60(b) motion. The District Court
issued an order requiring the Government to respond, but then vacated that order because
it was issued in error. The Rule 60(b) motion remains pending.
Nichols asserts in his present mandamus petition that he has asked the District
Court to order the Government to respond to his Rule 60(b) motion, but he has not
received a response from the District Court. He asks this Court to compel the District
Court to direct the Government to file a response.
The writ of mandamus is a drastic remedy and has traditionally has been used “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.” In re Patenaude, 210 F.3d 135, 140
1
On December 29, 2016, the District Court clarified that Nichols’ motion was denied
because it was a second or successive § 2255 motion. Nichols had filed a mandamus
petition asking us to direct the District Court to clarify its order. He moved to withdraw
the petition based on the District Court’s order and the petition was dismissed.
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(3d Cir. 2000) (internal quotations and citations omitted). A petitioner must show that he
has no other adequate means to attain the desired relief and that his right to the issuance
of the writ is clear and indisputable. Id. at 141.
Nichols does not satisfy this standard. The District Court docket does not reflect
that Nichols has sought any relief in connection with his pending Rule 60(b) motion.
Although there has been a delay in the adjudication of the motion, there is no indication
that the District Court would not act on a properly-filed motion calling the matter to its
attention. Nichols thus has an avenue for seeking the relief he desires. Nichols also has
not shown a clear and indisputable right to the issuance of a writ as the District Court
may be able to adjudicate the motion without a response from the Government.
Accordingly, we will deny the petition for a writ of mandamus.
3