In Re: Jesus Rosario , 265 F. App'x 129 ( 2008 )


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  •                                                                                                                            Opinions of the United
    2008 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    2-20-2008
    In Re: Jesus Rosario
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 08-1193
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    Recommended Citation
    "In Re: Jesus Rosario " (2008). 2008 Decisions. Paper 1563.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1563
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    ALD-129                                                           NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 08-1193
    ___________
    IN RE: JESUS ROSARIO,
    Petitioner
    ____________________________________
    On a Petition for Writ of Mandamus from the
    United States District Court for the Eastern District of Pennsylvania
    (Related to Civ. No. 05-cr-00214-01)
    ____________________________________
    Submitted Pursuant to Rule 21, Fed. R. App. P.
    February 14, 2008
    Before: SLOVITER, FISHER and HARDIMAN, Circuit Judges.
    (Filed: February 20, 2008 )
    _________
    OPINION
    _________
    PER CURIAM
    Jesus Rosario, a federal prisoner incarcerated at the United States Penitentiary-
    Hazelton in Bruceton Mills, West Virginia, filed a pro se motion to vacate under 28
    U.S.C. § 2255 in the United States District Court for the Eastern District of Pennsylvania
    on July 26, 2007.1 The government filed a motion to dismiss the § 2255 motion on
    1
    In August 2005, Rosario pled guilty to one count of possession with intent to
    deliver cocaine. He was sentenced to 120 months in prison in March 2006. This Court
    August 16, 2007. On August 21, 2007, Rosario filed a response in opposition and filed
    his § 2255 motion on the correct form, in compliance with a District Court order.
    According to Rosario, on October 23, 2007, he filed a “motion to compel review and
    disposition” of the § 2255 motion in the District Court, after the District Court failed to
    schedule a hearing on the government’s motion to dismiss or issue an order disposing of
    the motion on the papers.2 On December 6, 2007, Rosario attempted to file a “petition for
    permission to appeal or motion in the court of appeals for a second or successive appeal,”
    requesting immediate review of his § 2255 motion in this Court in the absence of any
    action by the District Court to dispose of the matter. The motion, construed as a petition
    for a writ of mandamus under Rule 21 of the Federal Rules of Appellate Procedure, is
    denied for the reasons that follow.
    Mandamus is a drastic remedy granted only in extraordinary cases. See In re Diet
    Drugs Prods. Liab. Litig., 
    418 F.3d 372
    , 378 (3d Cir. 2005). To prevail, the petitioner
    must establish that he has “no other adequate means” to obtain relief, and that he has a
    “clear and indisputable” right to issuance of the writ. 
    Id. at 378-79.
    Although a federal
    granted the government’s motion to enforce Rosario’s waiver of appeal and summarily
    affirmed the judgment of conviction. See United States v. Rosario, C.A. No. 06-2018 (3d
    Cir. Apr. 27, 2007).
    2
    Although Rosario certified that he sent the motion to the District Court, the
    motion to compel does not appear on the District Court docket. There is no need to
    explore the many possible reasons why the document did not make it to the District Court
    docket. We note only that, because there was no record of the motion having been filed
    or docketed in the District Court, the District Court judge certainly would have had no
    reason to know that it existed.
    2
    appellate court may issue a writ of mandamus on the grounds that undue delay is
    tantamount to a failure to exercise jurisdiction, Madden v. Myers, 
    102 F.3d 74
    , 79 (3rd
    Cir. 1996), the manner in which a court controls its docket is discretionary. In re Fine
    Paper Antitrust Litig., 
    685 F.2d 810
    , 817 (3d Cir. 1982).
    Rosario has not demonstrated that his right to the writ is clear and indisputable, nor
    has he explained why he has no other adequate means of relief. Rosario’s § 2255 motion
    has been pending in the District Court only for about six months. As no impediment
    appears to preclude disposition of the matter at this time, we are confident that the District
    Court will consider Rosario’s § 2255 motion as expeditiously as possible and will
    promptly issue a ruling. To the extent that Rosario seeks an extraordinary writ under Fed.
    R. App. P. Rule 21 to reopen his direct appeal, or petitions this Court for permission to
    appeal under Fed. R. App. P. 5, it is denied.
    3