BLD-083                                                          NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                         No. 10-4676
                                         ___________

                         IN RE: MICHAEL CURTIS REYNOLDS,
                                                         Petitioner
                         ____________________________________

                         On a Petition for Writ of Mandamus from the
              United States District Court for the Middle District of Pennsylvania
                         (Related to M.D. Pa. Crim. No. 05-cr-00493)
                         ____________________________________

                       Submitted Pursuant to Rule 21, Fed. R. App. P.
                                     January 6, 2011
            Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

                                  (Opinion filed: 1/24/2011 )
                                         _________

                                          OPINION
                                          _________

PER CURIAM

       Pro se petitioner, Michael Curtis Reynolds, seeks a writ of mandamus compelling

the United States District Court for the Middle District of Pennsylvania to conduct a

“Franks hearing.”1 Finding no basis for granting mandamus relief, we will deny the

petition.

       On July 12, 2007, Reynolds was found guilty by a jury of five counts of a six-


       1
            See Franks v. Delaware, 438 U.S. 154 (1978).
count superseding indictment. He was subsequently sentenced to 360 months

imprisonment and three years supervised release, and was ordered to pay a $500.00

special assessment. We affirmed the Judgment and Commitment in a non-precedential

opinion issued on March 18, 2010,2 and the Supreme Court denied Reynolds’ petition for

writ of certiorari on October 4, 2010. Despite the unfavorable outcome of his direct

appeal and cert. petition, Reynolds apparently believes that he is nonetheless entitled to a

hearing regarding the affidavit of probable cause used to support the search warrant

issued in the underlying criminal action. According to Reynolds, the District Court is

obligated to conduct a Franks hearing as a result of this Court’s March 18th opinion and

in accordance with Fed. R. Crim. P. 52(b).

       Mandamus is a drastic remedy available only in extraordinary cases, see In re Diet

Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005), as the petitioner must

demonstrate that he has “no other adequate means” to obtain the desired relief and a

“clear and indisputable” right to issuance of the writ. Madden v. Myers, 102 F.3d 74, 79

(3d Cir. 1996). We do not hesitate to conclude that Reynolds has failed to demonstrate a

clear and indisputable right to the issuance of a mandamus petition ordering the District

Court to hold a Franks hearing.

       Contrary to Reynolds’ assertion, there is nothing in our opinion affirming the

Judgment and Commitment which lends support to his contention. Though we stated that

       2
         We subsequently denied Reynolds’ motion to recall the mandate in an order
issued on September 14, 2010.

                                             2
the factual question as to whether a misstatement of fact set forth in an affidavit for

probable cause was intentionally or recklessly made is one to be determined by the

District Court in the first instance, we also noted that “Reynolds did not assert the

existence of a specific misstatement of fact in the District Court. Thus, there [was] no

factual determination by the District Court to review.” United States v. Reynolds, 374 F.

App’x. 356, 360 (3d Cir. 2010). We further held that Reynolds’ assertion that the master

affidavit did not establish probable cause was unpersuasive. Id.

       Reynolds’ reliance on Fed. R. Crim. P. 52(b) fares no better. While we do not

intend to comment on the timeliness of his filing, we note that the District Court docket

reflects that Reynolds only recently filed a “Motion Under Rule 33 for New Trial or

Motion Under Rule 52(b), Plain Error” on December 22, 2010. Although an appellate

court may issue a writ of mandamus on the ground that undue delay is tantamount to a

failure to exercise jurisdiction, Madden, 102 F.3d at 79, 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). There certainly has been no undue delay on the part of the District Court

in considering Reynolds’ request for relief under Rules 33 and/or 52(b). Moreover,

Reynolds has shown no clear and indisputable right to a mandamus petition compelling

the District Court to hold a Franks hearing under Rule 52(b), where that court has yet to

consider his motion seeking such a hearing. Additionally, any challenge to the District

Court’s disposition of this post-judgment motion will be available in the form of an

appeal to this Court once a decision has been issued.
                                              3
       We note that Reynolds also appears to take issue with the manner in which his

“Hazel-Atlas” Motion has been docketed by the District Court. A review of the District

Court docket reveals that the motion was filed in the underlying action on November 15,

2010. The government’s opposition to the motion was received two weeks later. The

motion thus appears ripe for disposition. Though it is unclear whether Reynolds is

seeking to compel the District Court to act on this motion as well, we likewise conclude

that there has been no undue delay on the part of the District Court in disposing of

petitioner’s motion. This is especially true considering the fact that Reynolds continues

to bombard the District Court with pro se filings. Furthermore, we once again state that

any challenge Reynolds wishes to raise as to the construction ultimately afforded his

motion by the District Court can be presented on appeal from any unfavorable decision.

       For the foregoing reasons, the petition for a writ of mandamus will be denied.




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