                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-24-2005

In Re: Vernal Alston
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2766




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Recommended Citation
"In Re: Vernal Alston " (2005). 2005 Decisions. Paper 966.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/966


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HPS-101 (June 2005)                                     NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                      No. 05-2766
                                    _______________

                              IN RE: VERNAL ALSTON,
                                                  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. Civ. No. 04-cv-02218)
                                    _______________

                      Submitted Under Rule 21, Fed. R. App. Pro.
                                   June 10, 2005
           Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges

                                  (Filed: June 24, 2005)
                                    _______________

                                        OPINION
                                    _______________

PER CURIAM.

              Pro se petitioner Vernal Alston seeks a writ of mandamus to compel the

United States District Court for the Middle District of Pennsylvania to rule on his

pending petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Alston

filed the underlying habeas petition in October 2004, which he amended in December

2004. After the District Court granted their three requests to extend the response period,

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the respondents filed a response to Alston’s amended petition on March 18, 2005.

Alston filed this mandamus petition on May 31, 2005.

              Mandamus is an appropriate remedy only in the most extraordinary of

situations. In re Pasquariello, 16 F.3d 525, 528 (3d Cir. 1994). To justify such a

remedy, a petitioner must demonstrate that he has a clear and indisputable right to

issuance of the writ. See Kerr v. United States District Court, 426 U.S. 394, 402 (1976);

DeMasi v. Weiss, 669 F.2d 114, 117 (3d Cir. 1982). It is well-settled that the manner in

which a District Court disposes of the cases on its docket is committed to its sound

discretion. In re Fine Paper Antitrust Litigation, 685 F.2d 810, 817 (3d Cir. 1982).

Some delays, however, are so intolerable as to warrant appellate intervention. See

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

              In Alston’s case, we conclude that the extent of the delay has not yet risen

to the level of a denial of due process, see id., because the case has not been dormant for

any significant period. Indeed, the most recent activity on Alston’s petition occurred in

April 2005. We are confident that the District Court will rule on Alston’s habeas petition

without unnecessary delay.

              Accordingly, we will deny the petition for a writ of mandamus.




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