DLD-270                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 12-3078
                                       ___________

                            IN RE: CHARLES PALADINO,
                                                   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. No. 11-cv-07470)
                      ____________________________________

                     Submitted Pursuant to Rule 21, Fed. R. App. P.
                                   August 30, 2012
             Before: AMBRO, JORDAN AND VANASKIE, Circuit Judges

                            (Opinion filed: September 6, 2012)
                                        _________

                                        OPINION
                                        _________

PER CURIAM

       Charles Paladino petitions for a writ of mandamus to compel the United States

District Court for the Eastern District of Pennsylvania to act on his request for the

production of documents in the proceedings on his petition for a writ of habeas corpus.

We will deny the petition for a writ of mandamus.

                                              I.

       In his habeas petition pursuant to 28 U.S.C. § 2254, Paladino challenges his 2008

conviction for robbery, robbery of a motor vehicle, conspiracy, and possession of the
instruments of crime in connection with the February 2006 robbery of a taxi cab. The

District Court referred Paladino’s petition to a Magistrate Judge. The Magistrate Judge

originally recommended that Paladino’s petition be dismissed without prejudice because

it included both exhausted and unexhausted claims. Of the numerous claims asserted in

Paladino’s petition, the only ones the Magistrate Judge found that he had exhausted were

(1) his challenge to the sufficiency of the evidence, and (2) his claim that his sentence

was illegal because the sentences for robbery and robbery of an automobile should have

merged. Paladino filed objections to the Magistrate Judge’s Report and Recommendation

(R&R) in which he indicated that he wanted to withdraw his unexhausted claims and

proceed only with the exhausted claims. The District Court approved and adopted the

R&R in part. In light of Paladino’s response, the District Court concluded that, rather

than dismissing the petition without prejudice, the petition should be returned to the

Magistrate Judge for review of the exhausted claims. The Magistrate Judge then ordered

the respondents to file a supplemental response to the petition. The time for them to do

so was extended to September 17, 2012.

       On March 29, 2012—around the same time that he filed his response to the

Magistrate Judge’s original R&R, but before the District Court had issued its order

referring the matter back to the Magistrate Judge—Paladino filed a Motion for

Production of Documents. In that motion, he requested that the District Court order the

respondents to produce various tax forms and a warehouse order for the period 2006

through 2012. Paladino also filed a motion to compel the production of those documents
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on May 11, 2012. He contends that neither the District Court nor the respondents have

acted upon either his original document request or his subsequent motion to compel. He

now requests that we issue a writ of mandamus requiring the District Court to take action.

                                               II.

       Mandamus is a drastic remedy available only in the most extraordinary of

circumstances. Kerr v. U.S. Dist. Ct., 426 U.S. 394, 402 (1976). It “has traditionally

been available to a court of appeals 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.’” Madden v. Myers, 102 F.3d 74, 77 n.3 (3d Cir. 1996) (citations omitted). Such

action is appropriate only where (1) the petitioner has no other adequate means to obtain

the relief sought; (2) the right to the issuance of the writ is clear and indisputable; and (3)

we are satisfied in the exercise of our discretion that mandamus is appropriate under the

circumstances. In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378-79 (3d Cir. 2005).

       We have explained that the manner in which a District Court disposes of the cases

on its docket and conducts discovery is committed to its sound discretion. In re Fine

Paper Antitrust Litig., 685 F.2d 810, 817-18 (3d Cir. 1982). However, there are instances

where “undue delay is tantamount to a failure to exercise jurisdiction,” which may

warrant mandamus relief. Madden, 102 F.3d at 79. So far it appears that the Magistrate

Judge and the District Court have been diligently handling Paladino’s habeas petition.

We do not find that the short delay so far in resolving Paladino’s discovery motion rises


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to the level of a denial of due process warranting the drastic remedy of mandamus. See

id. (addressing five-month delay).

       Paladino also suggests that the District Court has a simple duty to authorize his

discovery. Contrary to his assertions concerning the broad scope of discovery under the

Federal Rules of Civil Procedure, though, “[a] habeas petitioner, unlike the usual civil

litigant in federal court, is not entitled to discovery as a matter of ordinary course.”

Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rather, Rule 6 of the Rules Governing §

2254 Cases provides that a judge may, upon a showing of good cause, permit discovery.

Under Rule 6(b), the “party requesting discovery must provide reasons for the request.”

Ultimately, “[t]he burden rests upon the petitioner to demonstrate that the sought-after

information is pertinent and that there is good cause for its production.” Williams v.

Beard, 637 F.3d 195, 209 (3d Cir. 2011). Although we observe that it is not readily

apparent how Paladino construes the requested documents as being pertinent to his

habeas petition, we will leave it to the District Court to determine in the first instance

whether Paladino has satisfied the standard for obtaining discovery under Rule 6(b). We

are fully confident it will do so without undue delay.

                                              III.

       In sum, because the extraordinary circumstances justifying a writ of mandamus are

absent, we will deny the petition.




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