HLD-094 (January 2011)                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 11-1031
                                      ___________

                           IN RE: DEREK MCCLELLAN,
                                                Petitioner
                      ____________________________________

                     On a Petition for Writ of Mandamus from the
          United States District Court for the Western District of Pennsylvania
                    (Related to W.D. Pa. Civ. No. 2:06-cr-00263-1)
                      ____________________________________

                     Submitted Pursuant to Rule 21, Fed. R. App. P.
                                   January 31, 2011

             Before: MCKEE, Chief Judge, ALDISERT and WEIS, Circuit Judges

                             Opinion filed: March 18, 2011
                                      _________

                                       OPINION
                                       _________

PER CURIAM.

             On December 22, 2009, Derek McClellan filed a motion under § 2255 to

vacate, set aside, or correct sentence in the District Court.1 The Government responded,

and McClellan filed a reply on February 26, 2010. On January 11, 2011, McClellan filed


      1
        McClellan had filed a § 2255 motion in 2008, which was denied without
prejudice because his appeal was pending from his judgment of conviction. This Court
affirmed the judgment on October 30, 2009 (C.A. No. 08-1638).
                                            1
a pro se mandamus petition seeking to compel the District Court to rule on his § 2255

motion.

                 Mandamus is a drastic remedy available in only the most extraordinary

circumstances. In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005).

“A petitioner seeking the issuance of a writ of mandamus must have no other adequate

means to obtain the desired relief, and must show that the right to issuance is clear and

indisputable.” Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996). Although a district

court has discretion in managing the cases on its docket, see In re Fine Paper Antitrust

Litig., 685 F.2d 810, 817 (3d Cir. 1982), mandamus may be warranted when a district

court’s “undue delay is tantamount to a failure to exercise jurisdiction,” Madden, 102

F.3d at 79.

                 When McClellan filed this mandamus petition, no action had been taken by

the District Court in this matter since McClellan filed his reply in February 2010 (i.e.,

there had been no action for approximately eleven months). Although this delay is

troubling, we conclude that it does not rise to the level of a due process violation. We are

confident that the District Court will rule on McClellan’s pending § 2255 motion without

further delay.

                 Accordingly, we will deny McClellan’s mandamus petition without

prejudice to his right to seek mandamus relief should the District Court fail to rule

expeditiously on his § 2255 motion.


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