                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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ALD-129                                                           NOT PRECEDENTIAL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.




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