DLD-138                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 19-1251
                                     ____________

                              IN RE: ROY L. WILLIAMS,
                                                            Petitioner

                        __________________________________
                        On a Petition for Writ of Mandamus from
                              the United States District Court
                         for the Eastern District of Pennsylvania
                        (Related to D.C. Civ. No. 2-04-cv-04057)
                        __________________________________

                       Submitted Pursuant to Fed. R. App. Pro. 21
                                   March 21, 2019

        Before: JORDAN, GREENAWAY, JR. and NYGAARD, Circuit Judges

                             (Opinion filed: August 13, 2019)
                                     ____________

                                      OPINION*
                                     ____________


PER CURIAM

       Petitioner Roy L. Williams petitions for a writ of mandamus. For the reasons that

follow, we will deny the petition.

       Williams was convicted of first degree murder in the Philadelphia County Court of

Common Pleas in connection with the shooting death of James P. McDonnell. Following

the penalty hearing, the jury found one aggravating circumstance and no mitigating
circumstances and set the penalty at death. Post-verdict motions were argued and denied

and the trial court imposed a sentence of death. Williams’ sentence was affirmed on

direct appeal, see Commonwealth v. Williams, 660 A.2d 1316 (Pa. 1995) (“Williams I”).

       Williams filed a petition for relief pursuant to the Post Conviction Relief Act, 42

Pa. Cons. Stat. Ann. §§ 9541-9546, through counsel, Billy Nolas and James H. Moreno

of the Defender Association of Philadelphia. The state post-conviction court denied

relief. On appeal, the Pennsylvania Supreme Court affirmed in part, reversed in part, and

remanded for further proceedings to determine: (1) whether trial counsel was ineffective

during the penalty phase for failing to make a sufficient argument for life imprisonment

and for failing to investigate, develop and present significant mitigating evidence; and (2)

whether trial counsel was ineffective during the guilt phase for failing to present a

defense of diminished capacity, see Commonwealth v. Williams, 732 A.2d 1167 (Pa.

1999) (“Williams II”). Following an evidentiary hearing, the state post-conviction court

again denied relief. On appeal, the Pennsylvania Supreme Court affirmed, see

Commonwealth v. Williams, 846 A.2d 105 (Pa. 2004) (“Williams III”). The court held,

in pertinent part, that trial counsel’s failure to investigate and present a diminished

capacity defense did not constitute ineffective assistance, and that Williams was not

prejudiced by counsel’s failure to present his history of abuse and mental illness at

sentencing.

       On August 25, 2004, Williams filed a petition for writ of habeas corpus, 28 U.S.C.

§ 2254, in the United States District Court for the Eastern District of Pennsylvania,

through his counsel, Nolas and Moreno, alleging numerous guilt and penalty phase

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grounds for relief. The District Court granted Williams a stay of execution shortly

thereafter. Williams filed a memorandum of law in support of his § 2254 petition on

April 14, 2009; the District Attorney of Philadelphia submitted his answer to the § 2254

petition on June 25, 2010; and Williams then filed his reply memorandum on August 8,

2013. The District Court held argument on the petition on September 12, 2013, and

Williams submitted additional briefing thereafter on May 27, 2014, February 5, 2015,

April 7, 2016, and July 1, 2016. Meanwhile on April 7, 2016, Mathew C. Lawry of the

Capital Habeas Unit of the Federal Community Defender entered his appearance on

Williams’ behalf.

       On August 9, 2016, nearly 12 years after the § 2254 petition was filed, Williams,

through counsel, filed a motion for discovery, seeking disclosure of any documents in the

possession of the Philadelphia District Attorney’s Office reflecting former District

Attorney Ronald Castille’s personal involvement in his case. That motion was based on

the United States Supreme Court’s decision in Terrance Williams v. Pennsylvania, 136 S.

Ct. 1899 (2016). At the same time, Williams was pursuing a new state post-conviction

petition, alleging that the participation of Justice Ronald Castile in his direct and

collateral appeals violated his right to due process.

       On October 27, 2016, Williams filed a pro se motion for appointment of new §

2254 counsel, see Docket Entry No. 87. Williams argued that he was seeking relief

pursuant to Martinez v. Ryan, 566 U.S. 1 (2012) (holding that a claim that state post-

conviction counsel was ineffective is not cognizable in federal habeas but may qualify as

cause to excuse default of substantial claim of ineffective assistance of trial counsel), and

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that, because of a conflict of interest, his current habeas counsel could not represent him.

Thereafter, Williams filed a series of pro se motions, including, but not limited to, a

motion to proceed pro se, see Docket Entry No. 91; motions for leave to amend his §

2254 petition, see Docket Entry Nos. 92, 109 & 115; motions for substitute counsel, see

Docket Entry Nos. 101 & 102; and a motion for a status conference, see Docket Entry

No. 117. All of Williams’ pro se motions remain pending before the District Court.

       Meanwhile, his capital habeas counsel continued to litigate on his behalf. On June

5 and July 20, 2017, the District Court, pursuant to the District Attorney’s motion, stayed

the § 2254 proceedings and placed them in suspense pending completion of the new post-

conviction proceedings in state court. On November 28 and 29, 2017, the Philadelphia

Court of Common Pleas entered orders terminating and dismissing those proceedings and

Williams chose not to appeal. Counsel then moved to reactivate the federal habeas

proceedings and the District Court granted that motion on December 15, 2017. On June

6, 2018, habeas counsel filed an unopposed motion on Williams’ behalf for production of

Williams’ state Department of Corrections institutional and medical records, see Docket

Entry No. 113. Counsel asserted that “the parties have entered into negotiations in an

effort to resolve this case, at least in part” and that the requested “records would facilitate

the negotiations.” Id. On June 5, 2018, the District Court granted that motion and

ordered the production of the requested records. Then, on September 12, 2018 -- and

shortly after Williams filed his pro se motion for a status conference -- the District Court

ordered that the matter be placed in civil suspense.



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       Williams now files an amended petition for writ of mandamus, seeking an order

compelling the District Court to decide his pro se motions, including Docket Entry Nos.

87, 91- 92, 101-02, 107-12, 115, 117, and 119-20. 1 Williams alleges that the delay in

deciding his pro se motions violates his due process rights.

       We will deny the petition. A writ of mandamus is an extreme remedy that is

available only in extraordinary situations. See Kerr v. United States District Court, 426

U.S. 394, 402 (1976). To justify its use, a petitioner must show both a clear and

indisputable right to the writ and that he has no other adequate means to obtain the relief

desired. See Haines v. Liggett Group Inc., 975 F.2d 81, 89 (3d Cir. 1992). The

management of its docket is committed to the sound discretion of the District Court. In

re: Fine Paper Antitrust Litigation, 685 F.2d 810, 817 (3d Cir. 1982). When a matter is

discretionary, it cannot typically be said that a litigant’s right is “clear and indisputable.”

Allied Chem. Corp. v. Daifon, Inc., 449 U.S. 33, 35-36 (1980). Nevertheless, a writ of

mandamus may be warranted where undue delay is tantamount to a failure to exercise

jurisdiction. Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996).

       Generally, pro se litigants have no right to “hybrid representation” because “[a]

defendant does not have a constitutional right to choreograph special appearances by

counsel.” McKaskle v. Wiggins, 465 U.S. 168, 183 (1984). Here, Williams continues to

be represented by the Capital Habeas Unit, and his counsel are actively litigating his case.

1
 We will treat the amended petition filed on February 19, 2019 as having superseded the
original petition filed on January 30, 2019. Cf. New Rock Asset Partners, L.P. v.
Preferred Entity Advancements, Inc., 101 F.3d 1492, 1504 (3d Cir. 1996) (amended
complaint supersedes original and renders original of no legal effect).

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Id. (“Once a pro se defendant invites or agrees to any substantial participation by counsel,

subsequent appearances by counsel must be presumed to be with the defendant’s

acquiescence, at least until the defendant expressly and unambiguously ... request[s] that

... counsel be silenced.”). Certainly Williams may request to proceed pro se, id., and his

pro se motions to replace current habeas counsel and amend his § 2254 petition have

been pending for over two years. Nevertheless, current habeas counsel have been active

on his behalf during that time period, especially with respect to recent attempts at

“negotiations in an effort to resolve this case, at least in part.” Until those negotiations

are successfully completed or break down, there is no reason for the District Court to act

on Williams’ pro se motions. The District Court may, however, wish to require the

parties to provide status reports every 30 days regarding their discussions.

       For the foregoing reasons, we will deny the petition for writ of mandamus.




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