ALD-136                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 20-1050
                                       ___________

                             IN RE: KIRK A. SIMMONS,
                                                   Petitioner
                       ____________________________________

                      On a Petition for Writ of Mandamus from the
                 United States District Court for the District of Delaware
                   (Related to D. Del. Crim. No. 1-13-cr-00097-001)
                      ____________________________________

                    Submitted Pursuant to Rule 21, Fed. R. App. P.
                                   March 5, 2020
               Before: MCKEE, SHWARTZ and PHIPPS, Circuit Judges


                              (Opinion filed: April 27, 2020)
                                       _________

                                        OPINION *
                                        _________

PER CURIAM

       Kirk A. Simmons petitions for a writ of mandamus directing the District Court to

rule on motions that he has filed in his criminal action. We will deny the petition.

In 2014, Simmons pleaded guilty to attempted enticement and coercion of a minor in

violation of 18 U.S.C. § 2422(b). The District Court sentenced him to 120 months of



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
imprisonment. Simmons did not appeal, but he filed a motion to vacate his sentence

under 28 U.S.C. § 2255. The District Court denied that motion, and we denied

Simmons’s request for a certificate of appealability at C.A. No. 17-1414. Simmons later

filed with this Court an application under 28 U.S.C. §§ 2244 and 2255 for authorization

to file another § 2255 motion. He claimed that an exhibit that the Government submitted

with its § 2255 response (“Exhibit 4”), which the Government also had used at

sentencing, revealed fraud on the District Court. We denied Simmons’s application at

C.A. No. 18-2904.

At issue here are four other motions that Simmons filed with the District Court. First,

about two months before he filed his § 2244 application with this Court, he filed with the

District Court a motion for a “bill of particulars” seeking a determination whether the

Government had produced Exhibit 4 to his counsel during discovery. (ECF No. 104.)

Second, a little over a month after we denied Simmons’s § 2244 application, he filed with

the District Court a motion for relief from his § 2255 judgment under Fed. R. Civ. P.

60(b). (ECF No. 107.) As he had in his § 2244 application, Simmons alleged that

Exhibit 4 revealed that the Government had committed fraud on the District Court.

Third, Simmons filed a motion to correct a typographical error in his judgment relating to

his statute of conviction. (ECF No. 110.) Finally, on October 23, 2019, Simmons filed a

motion for a status report or hearing regarding his Rule 60(b) motion. (ECF No. 111.)

Simmons now has filed with this Court a mandamus petition seeking an order directing

the District Court to rule on these motions. After Simmons filed his petition, however,

the District Court granted the third of these motions and corrected Simmons’s judgment

                                             2
to reflect the correct statute of conviction. (ECF No. 115.) Thus, Simmons’s petition is

moot to that extent.

As for Simmons’s other motions, the first and second of those motions have been

pending since June and October 2018, respectively. Delays of that length ordinarily

might be cause for concern. See Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996).

Under the circumstances, however, we cannot say that the District Court has exhibited a

failure to exercise jurisdiction that warrants the extraordinary remedy of mandamus. See

id. Simmons filed his motion for a status report in October 2019 and, since then, the

District Court has ruled on his motion to correct his judgment. Thus, it appears that this

matter has the District Court’s attention, and we are confident that the District Court will

rule on Simmons’s remaining motions promptly and in due course.

For these reasons, we will deny Simmons’s mandamus petition. Our ruling is without

prejudice to Simmons’s ability to file another mandamus petition if the District Court

does not rule on his pending motions with a reasonable time from this decision.




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