CLD-024                                                          NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                        No. 10-3708
                                        ___________

                            IN RE: JOHNNY MARTINEZ,
                                              Petitioner
                       ____________________________________

                         Petition for Writ of Mandamus from the
             United States District Court for the District of the Virgin Islands
                            (Related to Civ. No. 05-cv-00052)
                      ____________________________________

                      Submitted Pursuant to Rule 21, Fed. R. App. P.
                                    October 28, 2010

               Before: RENDELL, FUENTES and SMITH, Circuit Judges

                             (Opinion filed November 4, 2010)
                                         _________

                                OPINION OF THE COURT
                                      _________

PER CURIAM

       Johnny Martinez petitions for a writ of mandamus directing the Appellate Division

of the District Court for the Virgin Islands to act on his motion for a certificate of

probable cause which is pending before the Superior Court of the Virgin Islands. For the

reasons below, we will deny the petition.

       Martinez pleaded guilty to second-degree murder in the Territorial Court of the

Virgin Islands and is serving a sentence of forty-five years in prison. In 2004, Martinez
filed a habeas petition in the Territorial Court in which he argued that (1) the second-

degree murder statute was unconstitutionally vague; (2) his rights to due process and

equal protection were violated because other murder defendants received shorter

sentences; and (3) the sentencing judge failed to recuse herself. The Territorial Court,

now known as the Superior Court of the Virgin Islands, denied the habeas petition in

October 2004 and a motion to reconsider in January 2005.

       Martinez appealed to the Appellate Division of the District Court of the Virgin

Islands which remanded the matter to the Superior Court to determine whether a

certificate of probable cause should issue. In December 2005, the Superior Court

declared that it did not have to comply with the rule requiring it to issue a certificate of

probable cause or state the reasons why one should not issue. In February 2008, the

Appellate Division remanded the matter to the presiding judge of the Superior Court to

determine whether a certificate of probable cause should issue. In June 2010, Martinez

filed a petition for a writ of mandamus in the Superior Court requesting it to act on his

request for a certificate of probable cause. On August 16, 2010, a Magistrate of the

Superior Court recommended that a certificate of probable cause be denied, and Martinez

subsequently filed objections to the Magistrate’s recommendation. On August 23, 2010,

Martinez filed his petition for a writ of mandamus with this Court.

       A writ of mandamus should be issued only in extraordinary circumstances. See

Sporck v. Peil, 759 F.2d 312, 314 (3d Cir. 1985). Determining whether an extraordinary

circumstance exists requires a two-part inquiry. First, it must be established that there is
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no alternative remedy or other adequate means of relief. Second, a petitioner must

demonstrate a clear and indisputable right to the relief sought. Kerr v. United States

District Court, 426 U.S. 394, 403 (1976). Generally, mandamus relief is used 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.” Roche v. Evaporated Milk Ass’n, 319

U.S. 21, 26 (1943).

       While there has been a lengthy delay in the Superior Court proceedings since the

matter was remanded in February 2008, the Magistrate recently recommended that

Martinez’s request for a certificate of probable cause be denied. The delay has not risen

to the level of an extraordinary circumstance such that the Appellate Division of the

District Court has a duty to interfere in the Superior Court’s resolution of Martinez’s

pending request for a certificate of probable cause. We are confident that the Superior

Court will resolve the request in a timely fashion.

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




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