GLD-401                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 13-3272
                                      ___________

                          IN RE: SYLVESTER ANDREWS,
                                               Petitioner
                      ____________________________________

                      On a Petition for Writ of Mandamus from the
           United States District Court for the Eastern District of Pennsylvania
                    (Related to E.D. Pa. Crim. No. 92-cr-00671-008)
                      ____________________________________

                     Submitted Pursuant to Rule 21, Fed. R. App. P.
                                   August 22, 2013

             Before: FUENTES, FISHER and VANASKIE, Circuit Judges

                           (Opinion filed: September 5, 2013)
                                       _________

                                        OPINION
                                        _________

PER CURIAM

       Sylvester Andrews, a federal prisoner proceeding pro se, petitions for a writ of

mandamus compelling the District Court to adjudicate his motion pursuant to Federal

Rule of Civil Procedure 60(b). For the reasons that follow, we will deny the petition.

       In 1993, Andrews was convicted of federal drug and weapons offenses arising out

of his participation in a drug-trafficking organization. Andrews was sentenced to life in
prison on the drug offenses, plus a 40-year term of imprisonment based on two violations

of 18 U.S.C. § 924(c). We affirmed the judgment on direct appeal.

       In 2001, Andrews filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255.

The District Court denied the motion because it was untimely filed and we denied

Andrews’ request for a certificate of appealability. In 2008, Andrews filed a motion

pursuant to 18 U.S.C. § 3582(c)(2). The District Court reduced his life sentence to 360

months in prison based on amendments to the Sentencing Guidelines for crack cocaine

offenses. Andrews’ 40-year consecutive sentence was not affected.

       In 2009, Andrews filed a motion pursuant to Federal Rule of Civil Procedure 60(b)

seeking relief from the denial of his § 2255 motion. The District Court dismissed the

motion as an unauthorized second or successive § 2255 motion. We granted a certificate

of appealability and, on February 29, 2012, ruled that the District Court had erred

because Andrews’ motion challenged the District Court’s decision that his § 2255 motion

was untimely and did not challenge a resolution of the merits of his claims. We

remanded the matter to District Court to decide the merits of the Rule 60(b) motion. See

C.A. No. 10-2088.1

       This Court’s judgment was filed in District Court on April 23, 2012. On June 14,

2012, the District Court issued an order directing the parties to file memoranda

addressing whether Andrews’ Rule 60(b) motion should be granted. Both Andrews and

1
 We set forth several questions for the District Court’s consideration on remand,
including whether Andrews’ innocence under Bailey v. United States, 516 U.S. 137
(1995), with respect to one of his violations of § 924(c) constitutes “extraordinary
circumstances” permitting Rule 60(b) relief.

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the Government filed responses. On November 1, 2012, the District Court appointed

Andrews counsel. The District Court then denied Andrews’ Rule 60(b) motion “without

prejudice subject to his right to file a counseled Rule 60(b) motion.” Dist. Ct. Order

entered 11/28/12.

       Counsel, however, did not file a Rule 60(b) motion and, on February 7, 2013,

Andrews filed in District Court a “Notice of Appearance as Pro-se Litigant under Title 28

U.S.C. § 1654” asking to remove his counsel of record, proceed pro se “with assistance

of counsel,” and re-instate his pro se filings. Shortly thereafter, Andrews filed a copy of

a letter he had sent his court-appointed counsel stating, among other things, that he had

been unable to reach him and that counsel had not contacted him since his appointment.

       There was no further docket activity in Andrews’ case until April 16, 2013, when

Andrews filed a one-sentence “Letter Motion” asking that nothing be submitted to the

Court on his behalf by any attorney without his approval. On July 11, 2013, Andrews

filed another “Notice of Appearance as pro-se Litigant Under Title 28 U.S.C. § 1654”

again asking to remove his counsel of record, proceed pro se “with assistance of

counsel,” and re-instate his earlier pro se filings. Andrews further asked the District

Court to address the questions set forth in this Court’s earlier decision and the District

Court’s June 14, 2012 order. No action has been taken on this filing.

       Andrews then filed a mandamus petition in this Court asking us to compel the

District Court to adjudicate his Rule 60(b) motion based on his pro se filings. Andrews

states that he has not heard from his court-appointed counsel and that he should not be

compelled to accept his representation. Andrews also asks this Court to compel the

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District Court to rule on matters related to the disposition of his Rule 60(b) motion,

including an earlier motion for extension of time to file his § 2255 motion.

       Mandamus relief is available in extraordinary circumstances. See In re Diet Drugs

Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). A petitioner must show that “(1)

no other adequate means [exist] to attain the relief he desires, (2) the party’s right to

issuance of the writ is clear and indisputable, and (3) the writ is appropriate under the

circumstances.” Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam)

(quotation marks omitted). A writ of mandamus may be appropriate when a district

court’s “undue delay is tantamount to a failure to exercise jurisdiction.” Madden v.

Myers, 102 F.3d 74, 79 (3d Cir. 1996). See also Johnson v. Rogers, 917 F.2d 1283, 1285

(10th Cir. 1990) (granting writ of mandamus where habeas petition was pending for 14

months).

       The District Court acted promptly when this case was remanded, but we agree

with Andrews that the resolution of his Rule 60(b) motion has been delayed since he was

appointed counsel on November 28, 2012. Andrews appears to have tried to call

attention to the fact that appointed counsel has not filed a Rule 60(b) motion on his behalf

in his District Court filings in February and July of this year. We do not find, however,

that there has been undue delay by the District Court in addressing these filings at this

point in time. Andrews’ second “notice,” which explicitly asked for a ruling on the

questions set forth in our earlier decision, was filed shortly before this mandamus

petition.



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       Accordingly, we will deny the petition for a writ of mandamus without prejudice

to Andrews filing a new mandamus petition if the District Court does not act on his

filings within a reasonable time.




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